MALATI DEVI vs STATE OF ORISSA AND OTHERS

Dr. A.K.Rath, J Â

Plaintiff is in appeal against a confirming judgment of the learned Civil Judge (Senior Division), Bhubaneswar in a suit for declaration of title and

permanent injunction.

Case of the plaintiff is that the suit land belongs to the State Government. She had constructed a house over the same. She is in possession of the

suit land since 31 years and as such, perfected title by way of adverse possession. Her name was recorded in the last settlement. Defendant no.4

intended to occupy the land with the assistance of the staff of defendant nos.1 to 3. Defendants threatened to demolish the construction made by her.

She made several representations to the Government to allot the suit land in her favour.

Defendants 1 to 3 filed a written statement denying the assertions made in the plaint. According to them, neither the plaintiff nor her husband was in

possession of the suit plot No.D-14 situated at Bapuji Nagar, Bhubaneswar. Suit plot no.669 corresponds to not final plot no.675. Suit plot no.D-14 is

not a part of plot no.669. In the year 1976, plot no.D-14 was leased out to one Bharat Behera. One Ananta Trivedi was in unauthorised possession.

Delivery of possession of the said plot could not be made to Bharat. Thus O.P.P. Proceeding No.145/76 was initiated against Ananta. Order of

eviction was passed on 22.11.1984. The Government leased out the suit plot to defendant no.4, who is the legal heirs of Bharat by means of registered

lease deed and delivered possession of the same on 6.4.1985. Defendant no.4 is in possession of the suit plot no.D-14. He had made a construction

over the same. Neither the plaintiff nor her husband was in possession of the suit plot. As defendant no.4 is in possession of plot no.D-14

corresponding to Hal not final Plot No.675, the suit is liable to be dismissed.

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

finding that G.A Plot No.14-D does not correspond to Hal Plot No.669. Plaintiff had made several representations to the Government to allow the land

in her favour. The plaintiff admits the title of the Government. There is no hostile animus. The plaintiff has no title over the suit land. Unsuccessful

plaintiff filed Title Appeal No.32 of 1989 before the learned Civil Judge (Senior Division), Bhubaneswar, which was eventually dismissed.

The second appeal was admitted on the substantial questions of law enumerated in Ground No.1(A), (B) and (D) of the appeal memo. The same

are -

“A) If the courts below are correct in deciding the suit with reference to the plot nos. assigned by the G.A Department at the time of preparing the

Map (Drawing) for purpose of allotment to different lessees, without taking into consideration settlement Plot Nos. which provide the only authentic

identification of land in dispute.

B) When the plaintiff has specifically claimed title to settlement plot no.669, if the courts below are correct in dismissing the suit merely because the

plaintiff has mentioned G.A drawing Plot No.14/D which may be a mistake.

D. When the plaintiff has claimed title to settlement Plot No.669 and has given its boundary, if the courts below are correct in taking into consideration

the boundary of G.A Plot No.14-D to discredit the plaintiff.â€​

Heard Mr. D.P Mohanty, learned counsel for the appellant and Mr. Swayambhu Mishra, learned counsel for the respondents 1 to 3. None

appeared for respondent no.4.

Mr.Mohanty, learned counsel for the appellant submitted that the learned courts below committed a mistake in holding that G.A Plot No.14-D does

not correspond to Hal Plot No.669 without taking into consideration the settlement plot numbers, which provide the only authentic identification of land

in dispute. The plaintiff has claimed title over settlement plot no.669. The court below fell into patent error in dismissing the suit holding that the

plaintiff has mentioned G.A Plot No.14/D, which may be a mistake. The boundary of plot no.669 has been given. The plaintiff is in possession of the

suit land peacefully, continuously and to the hostile animus of the defendants 1 to 3 for more than the statutory period and as such, perfected title by

way of adverse possession.

Per contra, Mr. Mishra, learned ASC submitted that both the courts below negatived the plea of adverse possession of the plaintiff. There is no

perversity in the said finding.

In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779, the apex Court observed as under :-

“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.â€​

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 has not been mentioned. Further, the plaintiff has made several representations to the Government to allot the

suit land in her favour. Thus the element of hostile animus is absent. The courts below are perfectly justified in holding that the plaintiff has not

perfected title by way of adverse possession. There is no perversity or illegality in the said finding. The substantial questions of law are 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. Â