Sitarani Das And Anr vs State Of Orissa & Others Vs

Sashikanta Mishra, J.

This appeal, filed by the plaintiffs before the trial Court, is directed against the judgment passed by the learned District Judge, Angul on 30.10.2024 followed by decree in RFA No. 26/2023 whereby the judgment passed by learned Civil Judge (Sr. Division), Angul on 23.09.2023 followed by decree in C.S. No. 157 of 2013 was confirmed.

The suit was filed by the plaintiffs for declaration of right, title and interest of plaintiff No.2 over the suit land by way of adverse possession or in the alternative, for a decree directing the defendants to settle the suit land in favour of plaintiff No.1 along with permanent injunction.

The plaintiffs’ case is that the suit land stands covered under Khata No.1 of Mouza-Angul Town appertaining to Plot No.119 measuring Ac.0.10 dec, out of total area of Ac.1.345 dec. The plaintiffs claim to be the original residents of Sakosingha, Angul but since 01.05.1955, the plaintiff No.1 and since 13.06.1973, the plaintiff No.2 have been possessing the suit land. Further, such possession is adverse to the true owner, which is the State of Odisha. Such possession was open, continuous and hostile to the true owner. As such, the plaintiffs claim to have perfected their right, title and interest over the property since 01.05.1985. On 05.03.1956 the then Tahasildar, Angul had gone to the suit land and asked the plaintiff No.2 to vacate the suit land by removing his construction thereof but his father violently threatened the Tahasildar and his staff with dire consequences, if they tried to evict him. Since then, no other steps were taken by the State or its functionaries to reclaim the land from the plaintiffs. Further, the suit land has been assessed to holding tax by Angul Municipality and electricity connection has been provided. On 16.08.2012, the plaintiff No.1 was asked by the Tahasildar, Angul to apply afresh for grant of lease of the suit land in her favour, for which she submitted application on 22.08.2012. However, on 11.01.2013, the plaintiff was informed to vacate the suit land as lease could not be granted in her favour. Hence, the suit.

The defendants, all of whom are State functionaries, did not file any written statement. However, the witnesses examined by the plaintiffs were cross-examined by them. They also advanced arguments in the case.

The trial Court framed the following points for determination.

(i) Is the suit maintainable in the eye of law ?

(ii) Is there any cause of action to file the suit ?

(iii) Whether the plaintiff No.2 has perfected his right, title, interest over the suit land by way of adverse possession ?

(iv) Can the defendants be directed to settle the suit land in favour of the plaintiff No.l in the alternative ?

(v) Whether the defendants can be permanently injuncted from the suit land ?

(vi) To what other relief the plaintiffs are entitled to ?

Taking up point Nos. (iii), (iv), (v) and (vi) together for consideration, the trial Court, after going through the evidence on record including the celebrated judgment of the Supreme Court in the case of Karnataka Board of Wakf vs. Government of India and Others (2004) 10 SCC 779 held that the plaintiffs’ claim of adverse possession as well as for direction to the State to settle the land in their favour is mutually contradictory. The trial Court also found that the plaintiff could not satisfactorily prove hostile animus which is an essential ingredient of adverse possession. The plea of adverse possession was therefore, negatived. As regards the other plea, the same was held be contradictory to the main plea and was also negated. The suit was thus dismissed.

The plaintiffs carried the matter in appeal. The learned First Appellate Court after going through the impugned judgment as well as on an independent assessment of the pleadings of the plaintiffs and evidence on record and in particular, the provisions under Order -VIII Rule 5 and Order-VIII, Rule 10 CPC, held that no case for interference is made out. The First Appellate Court also took note of the essential ingredients of adverse possession, particularly the factum of corpus possidendi and animus possidendi and found that the plaintiffs had not been able to satisfactorily prove both. It was therefore, held that the finding of the trial Court that the plaintiffs could not prove the plea of adverse possession, did not warrant any interference. The First Appellate Court was also of the view that the plea of adverse possession and the relief of mandatory injunction are mutually inconsistent. On such findings, the appeal was dismissed.

Being further aggrieved, the plaintiffs have approached this Court in the present appeal.

Heard Mr. B. Baug, learned counsel appearing for the appellants.

It is submitted by Mr. Baug that both the Courts below have committed manifest error in holding that the plea of adverse possession and the claim of mandatory injunction are inconsistent. He further submits that such ground cannot be applied in a suit against the State. Mr. Baug also submits that in absence of written statement the Courts below ought to have taken the course to provisions under Order-VIII Rule-5 and Order-VIII Rule -10 CPC to decree the suit by granting either of the reliefs to the plaintiffs.

This Court finds that the State defendants did not file any written statement. As already stated, the trial Court, however, thought it proper and rightly so, to frame the relevant points for determination. What is the effect of non-filing of a pleading to counter the pleadings of a plaint are well-known. In so far as the requirement of specific denial is concerned, Rule-5 of Order-VIII is relevant and reads as under:

“5. Specific denial— (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :

Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.

Provided further that every allegation of fact in the plaint, if not denied in the manner provided under Rule 3A of this Order, shall be taken to be admitted except as against a person under disability

[(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.

(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced. ".

Rule 10 of Order-VIII, which has been referred by Mr. Baug, reads as under

“10. Procedure when party fails to present written statement called for by Court.—Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up:]

[Provided further that no Court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement."

This Court is of the view that Rule-10 would not apply since the Court, despite non-filing of written statement by the State Defendant within the period stipulated, did not decide to pronounce judgment at once but decided to proceed further. It is well settled that even in the absence of a pleading it is open to the Court to consider the case of the plaintiff to be subjectively satisfied as to if the relief claimed can nevertheless be granted. Rule-5 refers to the requirement of law for the defendant to specifically deny the plaint averments. In the circumstances narrated above, the same would have no application, since no written statement itself was filed.

After perusing the judgment passed by the trial Court as confirmed by the First appellate Court, this Court finds that the trial Court committed no error in proceeding further with the case despite non-filing of written statement. It is also seen that the trial Court examined the matter from the point of view of the case put forth by the plaintiffs to see as to if the relief claimed could be granted, which according to the Court, is the correct approach.

After going through the evidence, the trial Court found that the plea of adverse possession is not proved at all. That apart, the other relief sought for i.e., mandatory injunction to direct the defendants to settle the suit land in favour of the plaintiffs, was also found to be without merit for the reason that the plaintiffs, could not prove a justified and legal basis for raising such a claim.

Learned counsel for the appellant has not been able to demonstrate as to how the above finding of fact, which is obviously based on the evidence on record, is incorrect or perverse or otherwise against the evidence on record so as to persuade this Court to interfere.

On an independent analysis, this Court is also of the view that the plaintiff appellants have not been able to show that the findings rendered by both the Courts below are such as no prudent person would arrive at in the circumstances.

For the foregoing reasons therefore, this Court finds no substantial question of law involved for adjudication in the appeal. The appeal being thus devoid of merit, is therefore, dismissed.

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