LAXMI CHARAN DAS vs STATE OF ORISSA AND ANOTHER

Dr. A.K.Rath, J

This is a plaintiff’s appeal against confirming judgment. The suit was for declaration of title and permanent injunction.

An area of Ac.0.050 cents of land appertaining to Survey No.289/948, P.O./P.S./Tahasil-Purushottampur in the district of Ganjam is the subject-

matter of dispute.

The case of the plaintiff was that the suit land was originally recorded as ‘Gramakantha Paramboke’. His grandfather, Narayan Das, had

purchased the suit land by means of a registered sale deed no.1302 dated 06.06.1913 from one Govinda Das. His grandfather was in possession of the

suit land. Thereafter, the suit land is in possession of his family members. He had constructed a thatched house over the suit land. In the year 1978, he

installed a mill over the suit land. While matter stood thus, the Tahasildar, Purushottampur, defendant no.2, initiated Encroachment Case No. 123 of

1979 against him. Order of eviction was passed. Assailing the order, he filed O.P.L.E. Appeal No. 06 of 1984 before the Sub-Collector, Ganjam,

Chatrapur. The appeal was dismissed. On 16.10.1992, he made an application to defendant no.2 to settle the suit land in his favour. But no order has

been passed. Since he is in continuous possession of the suit land, the land ought to have been settled in his favour. He is in possession of the suit land

peacefully, continuously and with the hostile animus of the defendants for more than the statutory period and as such, perfected title by way of

adverse possession. The order of eviction was bad in law. In the Hal Settlement R.O.R., the suit land had been wrongly recorded as ‘Anabadi’.

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

The defendants entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendants is that the suit

land is the Government land. The same was recorded as ‘Anabadi’ in the settlement of the year 1978. The plaintiff has no semblance of right,

title and interest over the suit land.

Stemming on the pleadings of the parties, learned trial court struck five issues. Parties led evidence. Learned trial court dismissed the suit with the

finding that the suit land is the Government land. The plaintiff failed to prove his title over the same. There is no mention of patta number and survey

number in the sale deed, vide Ext.1. Ext.1 does not co-relate to the suit land. The plaintiff had failed to prove that he had perfected title by way of

adverse possession. Order of eviction was passed by the authority under the Orissa Prevention of Land Encroachment Act (“O.P.L.E. Actâ€). In

view of the bar contained in Sec.16 of the O.P.L.E. Act, the suit is not maintainable. Unsuccessful plaintiff challenged the judgment and decree

before the learned Civil Judge (Senior Division), Chatrapur in T.A. No. 08 of 1995, which was eventually dismissed.

This appeal was admitted on the following substantial questions of law:-“(i) Whether the civil court has jurisdiction to decide the suit out of which

the appeal arises in view of the provisions of section 16 of the Orissa Prevention of Land Encroachment Act, 1972 ?(ii) Whether the conclusion of the

trial court and the first appellate court that the plaintiff was not in possession of the suit land is correct in law ?â€​

Heard Mr. Anup Kumar Bose, learned counsel along with Mr. P.K. Das, learned counsel for the appellant and Mr. Rama Prasad Mohapatra,

learned Additional Government Advocate for the respondents.

Mr. Bose, learned counsel for the appellant argued with vehemence that notwithstanding the bar contained in Sec. 16 of the O.P.L.E. Act, the suit

is maintainable. The grandfather of the plaintiff purchased the suit land by means of a registered sale deed vide Ext.1. Since the time of his

grandfather, the suit land is in possession of the family members of the plaintiff. The plaintiff is in possession of the suit land since the time of his

forefathers. In the sale deed vide Ext.1, the boundary of the suit land has been mentioned. Even if the khata number and plot number have not been

mentioned, the title passed. The sale deed is a valid one. To buttress the submission, he relied on a decision of this Court in the case of State of Orissa

v. Bhanu Mali (Dead) Nurpa Bewa and others, 1996 (I) OLR 460.

Per contra, Mr. Mohapatra, learned Additional Government Advocate submitted that the suit land is not identifiable. There is no mention of khata

number and plot number. The suit plot does not corelate to the sale deed vide Ext.1. The plaintiff made an application to the defendant no.2 to settle

the land. The suit schedule land appertains to Survey No.289/948, Ac.0.050 cents. As per Exts. 6 and 7, Survey No.289/948 consists of area Ac.3.095

dec. There is no mention, either in the plaint or in the sale deed, the portion of land claimed by the plaintiff. He further submitted that the plaintiff failed

to prove that he has perfected title by way of adverse possession.

In State of Orissa v. Bhanu Mali (supra), 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. 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.

There is no mention of khata number and plot number in the sale deed. Only the boundary has been given. Further, the suit land described in the

schedule of the plaint does not tally with the sale deed. Thus no title has been passed. As per Exts. 6 and 7, Survey No.289/948 consists of area

Ac.3.095 dec. But the plaintiff claimed the title over an area of Ac.0.050 dec. The plaint does not reveal the portion of land claimed by the plaintiff.

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€​

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. In para-8 of the plaint, it is stated that on 16.10.1992, the plaintiff made an application to the defendant no.2 to settle the suit schedule land

in his favour. Thus, the element of hostile animus is absent. Both the courts below concurrently held that the plaintiff had failed to prove that he has

perfected title by way of adverse possession. There is no perversity or illegality in the findings of the courts below.

Claim of title to the property and adverse possession are mutually inconsistent. In Saroop Singh v. Banto and Others, (2005) 8 SCC 330, the apex

Court held:-

“29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but

commences from the date defendant's possession becomes adverse.

'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for

prescription does not commence. As in the instant case, the Appellant categorically states that his possession is not adverse as that of true owner, the

logical corollary is that he did not have the requisite animus.†15. In Annasaheb Bapusaheb Patil and others v. Balwant alias Balasaheb Babusaheb

Patil (dead) by LRs and heirs and others, (1995) 2 SCC 543, the apex Court held:-

“15. In the case of a Hindu joint family, there is a community of interest and unity of possession among all the members of the joint family and

every coparcener is entitled to joint possession and enjoyment of the coparcenery prop- erty. The mere fact that one of the coparceners is not in joint

possession does not mean that he has been ousted. The possession of the family property by a member of the family cannot be adverse to the other

members but must be held to be on behalf of himself and other members. The possession of one, therefore, is the possession of all.â€​

In Mohan lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639, the apex Court held:-

 “4. 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., upto 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 fails and is dismissed. There shall be no order as to costs.