State Of Orissa And Another vs Jaladhar Sha And Others

A.K. Rath, J

Defendant nos. 1 and 2 are the appellants against a confirming judgment.

Plaintiffs-respondent nos. 1 to 4 instituted T.S. No. 13 of 1985 in the court of the learned Subordinate Judge, Anandapur for declaration of title on

the basis of adverse possession. The case of the plaintiffs was that the suit land was a piece of Government land. Their grandfather reclaimed the suit

land and converted it to a paddy field in the year 1935. He was in possession of the said land. Thereafter, the plaintiffs are in continuous cultivating

possession of the suit land to the knowledge of the State. The R.I., being instigated by some persons of the locality, submitted his report to the

Tahasildar, Anandapur, defendant no. 2, with regard to encroachment of the suit land by the plaintiffs. Thereafter, Encroachment Case No. 1/82 was

initiated against them. Order of eviction was passed. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.

The defendant nos. 1 and 2 filed written statement denying the assertions made in the plaint. The case of the defendant nos. 1 and 2 was that the

suit land belongs to the State of Orissa. The plaintiffs encroached upon the suit land in the year 1980. The R.I. submitted its report, whereafter the

Tahasildar, Anandapur, defendant no. 2, initiated Encroachment Case No. 1/82. Order of eviction was passed. Penalty was imposed. The plaintiffs

paid the penalty. Thereafter, the plaintiffs filed Encroachment Appeal No. 9/84, which was dismissed. The suit land was recorded as Jalasaya under

the name of Chatara Pokhari in Rakhit khata. Padan Sha, father of the plaintiffs, filed an affidavit before the defendant no. 2 on 15.4.83 stating therein

that he had been evicted from the suit land.

Stemming on the pleadings of the parties, learned trial court struck six issues. Learned trial court decreed the suit holding inter alia that no evidence

was adduced from the side of the defendants to prove eviction in encroachment case. There is no document on record to show the plaintiffs were in

possession prior to the year 1980. The oral evidence of plaintiffs that they are in possession of the land since 35 years is not rebutted by the State.

Source of information of Govt. for initiation of encroachment case has not proved. The father of the plaintiffs paid penalty, which is evident from

Ext.3. The plaintiffs have perfected their title by way of adverse possession. The unsuccessful defendant nos. 1 and 2 filed T.A. No. 40 of 1988

before the learned District Judge, Keonjhar, which was eventually dismissed. It is apt to state here that during pendency of the second appeal, the

respondent nos. 3 and 5 died. Their legal heirs have been substituted.

The second appeal was admitted on the following substantial question of law.

“If the finding of both the courts below about plaintiffs' acquisition of title by adverse possession is legally sustainable?â€​

Heard Mr. S. Mishra, learned A.S.C. for the appellants and Mr. D.P. Mohanty along with Miss M. Pal, learned Advocates for the respondents.

Mr. Mishra, learned A.S.C. for the appellants, submitted that the date of entry into the suit land has not been mentioned in the plaint. Continuous

possession howsoever long will not become adverse unless there is hostility against the true owner. The plaintiffs had not pleaded when their

possession became adverse to the Government. The plaintiffs paid penalty in the encroachment case as would be evident from rent receipt, Ext.3. The

same amounts to admitting the title of the State. To buttress the submission, he placed reliance to the decision of this Court in the case of State of

Orissa v. Abu Bakkar Habib, 2017 SCC OnLine Ori. 37.

Per contra, Mr. Mohanty, learned Advocate for the respondents, submitted that the grandfather of the plaintiffs entered into the suit land in the year

1935. He was in possession of the same. Thereafter the plaintiffs are in possession of the land peacefully, continuously and with the hostile animus to

the defendants and as such perfected title by way of adverse possession. Neither the affidavit, nor the orders passed by the encroachment proceeding

had been exhibited by the defendants. Both the courts below concurrently held that the plaintiffs have perfected title by way of adverse possession.

There is no perversity in the said finding.

Admittedly the suit land is a Govt. land. It was recorded as Jalasaya. Mere possession of the suit land for long time is not suffice to hold that the

plaintiffs have 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 Karnataka Board of Wakf v. Govt. of India, (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 precarioâ€, 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€​

(emphasis laid)

Ext.3, rent receipt, shows that the father of the plaintiffs paid penalty in Encroachment Case No. 1/82. This Court in the case ofA bu Bakkar

Habib held that when penalty is paid, the plaintiff admits the title of the State. The possession is not hostile to the real owner and amount to a denial of

title to the property claimed.

The plaintiffs have failed to prove the date of entry into the suit land. Their father paid the penalty. The element of hostile animus is absent. The

findings of the courts below with regard to acquisition of title by the plaintiffs are perverse. The substantial question of law has been answered

accordingly.

Resultantly, the impugned judgments are set aside. The appeal is allowed. The suit is dismissed. There shall be no order as to costs.