Prasanna Kumar Mohanta And Another vs State Of Orissa Represented Through The Collector, Sundargarh And Another

DR. A.K.RATH, J

This appeal at the instance of the plaintiffs’ assail the affirming judgment of the learned District Judge, Sundargarh, in Title Appeal No.6 of

1994 in a suit for declaration of title, confirmation of possession and recovery of possession, if they are dispossessed from the suit property during

pendency of the suit.

The dispute pertains to a tank admeasuring an area of Ac.6.39 dec. appertaining to Sabik Plot Nos.173, 174 and 271, Sabik Khata No.33 of village

Nandapada.

The case of the plaintiffs was that Sunaram Mahanta, grandfather of the plaintiffs had excavated the tank over the suit land prior to 1944. He was

in possession of the tank. He used water of the tank for irrigation and raising pisciculture purposes. After his death, Parikshit Mahanta, father of the

plaintiffs, was in possession of the tank. But in the major settlement, the tank stood recorded in Rakhit Khata No.57. Their father was not aware of

the wrong recording of the ROR. Neither the government, nor the then Lahunipara Grama Panchayat were in possession of the tank. In the year

1986, the Sarpanch of Sankhaposh Gram Panchayat-defendant no.2 raised a dispute with regard to fishing right over the tank on the ground that the

tank had been transferred to it. Their father resisted the same. A proceeding u/s.107 Cr.P.C. was initiated by the S.D.O., Bonai. The case was

dropped on 1.7.1986. Thereafter, their father filed Mutation Case No.237 of 1987 before the Tahasildar to mutate the land in his favour. The R.I.

submitted a report stating that Sunaram Mahanta was in possession of the land since 1945. After death of their father, the plaintiffs are in possession

of the tank. The mutation case was dismissed on the ground that the tank has been recorded in rakhit khata. While matter stood thus, the Tahasildar

initiated Encroachment Case No.241 of 1987. The case was dropped treating the tank to be a public tank and the same has been transferred to

Sankhaposh Gram Panchayat, defendant no.2. They filed Encroachment Appeal No.12 of 1988 before the Sub-Collector, Bonai. The same having

been dismissed, they filed Encroachment Revision Case No.2 of 1990 before the A.D.M., Sundargarh. The revision met with the same fate. The

alleged transfer of suit tank to Sankhaposh Gram Panchayat, defendant no.2 is a misnomer. They have renovated the tank. The person, who had

excavated the tank on the govt. land with or without permission, was recognized as a tenant by the ex-State Government of Bonai. They are in

possession of the suit land peacefully, continuously and hostile animus to the defendant no.1 for more than thirty years and as such, perfected title by

way of adverse possession.

Defendant no.1 was set ex parte. Defendant no.2 filed written statement pleading inter alia that the suit is not maintainable for non-joinder of

necessary parties, i.e. Sankhaposh Gram Panchayat as well as the Tahasildar, Bonai and for none service of notice on Sankhaposh Gram Panchayat,

defendant no.2 under Section 138(1) of the Orissa Gram Panchayats Act. Sunaram Mahanta was not in possession of the suit tank. The villagers are

using the tank for bathing and other purposes. The suit tank was transferred to Lahunipada Gram Panchayat by the SDO, Bonai, vide letter No.621,

dated 6.2.1944. After creation of Sankhaposh Gram Panchayat, the tank was transferred to Sankhaposh Gram Panchayat. The Gram Panchayat was

putting the tank to auction for pisciculture. Parikshit Mahanta, father of the plaintiffs had taken the tank on lease from 1957-58 and 1959-60. He

acknowledged that Shankhaposh Gram Panchayat was the owner in possession of the suit tank. During ex-State of Bonai, gauntias provided water to

the villagers. They were not the owner of the tanks. The plaintiffs have not perfected title by way of adverse possession.

On the inter se pleadings of the parties, learned trial court framed six issues. Parties led evidence, oral and documentary. Learned trial court came

to hold that plaintiffs are in possession of the suit tank. They have right, title and interest over the same. It dismissed the suit holding that no notice

under Section 138(1) of the Orissa Gram Panchayats Act has been served on defendant no.2-Gram Panchayat. Felt aggrieved the plaintiffs filed Title

Appeal No.6 of 1994 before the learned District Judge, Sundargarh. Learned appellate court held that the respondents have not field any cross

objection assailing the findings of the learned trial court & concurred with the findings of the learned trial court, but dismissed the appeal holding that

the suit is not maintainable in the absence of any notice on defendant no.2-Gram Panchayat.

Heard Mr. Prakash Ranjan Barik, learned counsel for the appellants and Mr. Ram Prasad Mohapatra, learned AGA for the respondent no.1.

Mr. Barik, learned counsel for the appellants submits that Sunaram Mahanta excavated the tank prior to 1944. He was using water of the tank for

irrigation and raising pisciculture purposes. After death of Sunaram, his son Parikhit Mahanta was in possession of the tank. Thereafter, plaintiffs are

in possession of the same. The courts below held that plaintiffs have perfected title over the suit tank. He further submits that defendant no.2 is not a

necessary party to the suit. Thus no notice was required to be issued to the defendant no.2 u/s. 138(1) of the Orissa Gram Panchayats Act.

Per contra, Mr. Mohapatra, learned AGA for the respondent no.1 submits that the findings of the courts below that plaintiffs have perfected title

over the suit land by adverse possession is perverse. He further submits that defendant no.2 is a necessary party. No notice u/s.138 (1) of the Orissa

Gram Panchayats Act was issued. The suit is not maintainable

According to the plaintiffs, defendant no.2 raised a dispute pertaining to fishery right on the assertion that the tank has been transferred to Gram

Panchayat. The tank has never been transferred to the Gram Panchayat. The defendant no.2 in his written statement has specifically averred that by

letter No.621, dated 6.2.1944, the SDO, Bonai had transferred the tank in question to the Gram Panchayat. Thus defendant no.2-Gram Panchayat is a

necessary party.

Section 138 of the Orissa Gram Panchayats Act provides that :

“138. Suits against Grama Panchayats or their officers. - (1) No suit or other legal proceedings shall be instituted against a Grama Sasan or a Grama Panchayat or

against member, Sarpanch, Naib-Sarpanch, officer or other employee of the Grama Panchayat or against any person acting under its or his direction for anything done

or purporting to have been done under this Act, until the expiration of one month next after notice in writing has been, in the case of Grama Sasan or Grama

Panchayat, delivered in or left at the office of the Panchayat and in the case of a member, officer or servant or any person acting under his direction or the direction of

the Grama Panchayat, delivered to him or left at his office or place of residence, explicitly stating the cause of action, the nature of the reliefs sought, the amount of

compensation, if any, claimed and the name and place of residence of the intending plaintiff; and the plaint shall contain a statement that such notice has been so

delivered or left.

(2) If the Grama Panchayat, members, Sarpanch, Naib-Sarpanch, officer or other employee or the person as aforesaid has tendered amends, sufficient in the opinion of

the Court to the plaintiff, the plaintiff shall not recover any sum in excess of the amount so tendered and shall also pay all costs incurred by the defendant after such

tender.

(3) No suit or other legal proceeding referred to in Sub-section (1) shall be instituted after the expiry of a period of six months from the date of the accrual of the

alleged cause of action.â€​

Section 138 of OGP Act was the subject matter of interpretation of this Court in the case of Bhagaban Khatua and others Vrs. State of Orissa

and others, 2018 (I) CLRâ€"281. This Court held :

“17. Sub-section 1 of Sec. 138 of the Orissa Gram Panchayats Act provides that no suit or other legal proceedings shall be instituted against a Grama Sasan or a

Grama Panchayat or against Member, Sarpanch, Naib-Sarpanch, officer or other employee of the Grama Panchayat or against any person acting under its or his

direction for anything done or purporting to have been done under this Act, until the expiration of one month next after notice in writing has been, in the case of

Grama Sasan or Grama Panchayat, delivered in or left at the office of the Panchayat and in the case of a member, officer or servant or any person acting under his

direction or the direction of the Grama Panchayat, delivered to him or left at his office or place of residence, explicitly stating the cause of action, the nature of the

reliefs sought, the amount of compensation, if any, claimed and the name and place of residence of the intending plaintiff; and the plaint shall contain a statement that

such notice has been so delivered or left. Sub-section (3) provides that no suit or other legal proceeding referred to in Sub-section (1) shall be instituted after the

expiry of a period of six months from the date of the accrual of the alleged cause of action. On a bare reading of the aforesaid provision it is clear that the same is

mandatory in nature.â€​

In absence of any notice u/s.138(1) of the Orissa Gram Panchayats Act on Sankhaposh Gram Panchayat, defendant no.2 the suit is not

maintainable.

In Banarsi and others Vrs. Ram Phal, AIR 2003 SC 1989, the Apex Court held that appeal lies against the decree and not against a mere finding.

In Jatani Dei Vrs. Udayanath Behera, AIR 1983 Orissa 252, this court held that Order 41, Rule 22 CPC permits the respondent who may not have

appealed from any part of the decree to support the decree and state that the finding against him in the court below in respect of any issue ought to

have been in his favour. When the respondent supports the decree, he need not file any cross objection because when the decree is in his favour,

cross objection is not maintainable. Cross objection, in such situation, is inconceivable. Cross objection is filed against a part of the decree.

In view of the authoritative pronouncement of this Court in the case of Jatani Dei, the irresistible conclusion is that without filing cross objection,

the defendant can support a decree.

Now the stage is set to decide the appeal on merit. The question does arise as to whether the plaintiff can institute the suit for declaration of title

by way of adverse possession.

An identical matter came up for consideration before this Court in the case of Nabin Chandra Mohanta Vrs. State of Orissa (R.S.A. No.396 of

2004 disposed of on 22.02.2019). Taking a cue from the decision of the apex Court in the case of Gurdwara Sahib Vrs. Gram Panchayat Village

Sirthala and another, (2014) 1 SCC 669, this Court held :

“10. In Gurdwara Sahib, the plaintiff-appellant filed the suit for decree of declaration to the effect that it had become the owner of the suit property by adverse

possession, correction of ROR and permanent injunction. The suit was partly decreed by the trial court granting relief of injunction. The first appeal against that part

of the judgment, whereby relief of declaration was denied was dismissed by the Additional District Judge. In the second appeal, the relief of declaration by way of

adverse possession was denied holding that such a suit is not maintainable. The second appeal was dismissed. The matter travelled to the Apex Court. The Apex

Court held:

 “8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in

adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the

appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.â€​ (emphasis laid)

……In no uncertain terms, the Apex Court held that even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such

adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this

adverse possession as a shield/defence. The same is ratio decidendi. The High Court is bound under Article 141 of the Constitution of India…..

xxx xxx xxx

In State of Orissa Vrs. Bhanumali (Dead) Nurpa Bewa and others, AIR 1996 Orissa 199, a question arose that whether the decision of the Revenue Officer in the

proceeding under the Orissa Prevention of Land Encroachment 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 Orissa Prevention of Land Encroachment 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. But then, in view of

the decision of the Apex Court in the case of Gurdwara Sahib (supra), the plaintiff cannot maintain the suit for declaration of title by way of adverse possession.â€​

The inescapable conclusion is that even if the plaintiffs are found to be in adverse possession, they cannot seek a declaration to the effect that

such adverse possession has matured into ownership.

In the wake of aforesaid, the appeal is dismissed, since the same does not involve any substantial questions of law. No costs.

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