Tanka Bag & others vs Shiba Pradhan (since dead)

This is defendants'' appeal against a reversing judgment.

Shiba Padhan, predecessor-in-interest of the respondents 1(a) to 1(i), instituted a suit for permanent injunction. Case of the plaintiff is that his

father Sankirtan Padhan was authorized by the State Government to enjoy fruits of the trees standing over the suit land. The suit land has been

recorded in his name in the major settlement ROR. After his death, he and his mother are enjoying the fruits of the trees standing over the same.

The suit land has been recorded in their names in the consolidation operation. Defendants have no semblance of right, title and interest over the suit

land.

Defendants filed a written statement denying the assertions made in the plaint. They challenged the right of the plaintiff over the suit land. The suit

land is the property of the Government. They are landless persons. They applied to the Government for settlement.

On the inter se pleadings of the parties, learned trial court struck four issues. Parties led evidence. Learned trial court came to hold that the suit

land has been recorded under Rakhit khata. The same belongs to the Government. In the remarks column of the ROR, vide Ext.1, it was

mentioned that Sankirtan was enjoying fruits of the trees standing over the suit land. No settlement was made in favour of Sankirtan. The plaintiff

(P.W.1) admitted that he has no document to show that his father was authorised by the Government to enjoy the fruits. The plaintiff has failed to

prove the title over the suit land. The settlement ROR neither crates title nor extinguishes title. Held so, it dismissed the suit. Assailing the judgment

and decree, the plaintiff filed T.A No.7 of 1985 before the learned Sub-Judge, Bargarh. Learned appellate court came to hold that Exts.1 to 3

show that the ancestors of the plaintiff were enjoying the fruits of the trees. The plaintiff has right to enjoy the fruits. Since the same has been

infringed by the defendants, the plaintiff is entitled to protect his right. A person in possession and enjoyment of the property without title has an

interest in the suit property. Held so, it allowed the appeal. It is apt to state here that during pendency of the appeal, the plaintiff died, whereafter

his legal representatives have been substituted.

The appeal was admitted on the substantial questions of law enumerated in Ground Nos.3 to 5 in the appeal memo. The same are -

For that the lands in question are admittedly Rakshit lands belonging to the Government. In the premises there being absolutely no proof of any

authorisation by the State in favour of the plaintiffs'' father, the lower appellate court has committed error of law by holding that there was existence

of such a right merely from the entry of the record of rights.

For that even assuming (though not conceding) that there was some authorisation by the Government to the plaintiffs'' father for the enjoyment of

the standing trees, it is submitted that in absence of any proof of the fact that the right in question is a heritable one and accordingly the plaintiff was

in enjoyment of the same, the learned Subordinate Judge has committed grave illegality by decreeing the suit of the plaintiff.

For that the learned Subordinate Judge has also further committed error of law by completely ignoring the settled legal position that neither the

Major Settlement record of rights nor the Land Register prepared u/s.6 of the O.C.H. & P.F.L. Act, 1972 could create any right in favour of the

plaintiff or could authorize or give legal permission to the plaintiff to enjoy the fruits of the standing trees.

Heard Mr. Abhaya Kumar Mahakud, learned counsel for the appellants. None appeared for the respondents.

Mr. Mahakud, learned counsel for the appellants, submitted that the suit land belongs to the Government. The plaintiff has no title over the same.

Thus the suit for permanent injunction is not maintainable.

An identical matter came up for consideration before this Court in the case of State of Orissa and another v. Rabinarayan Rout (SA No.252 of

1999 disposed of on 10.7.2017). In the said case, the plaintiff instituted the suit pleading, inter alia, that the Ex-Ruler permitted him to enjoy the

fruits of the trees standing over the suit land. This Court held -

In Dibakar Pattnaike (supra), the Ex-Ruler granted lease of mango tree standing over the suit land in favour of the plaintiff. This Court held that

lease of the mango tree standing on the suit land in favour of the plaintiff necessarily implies grant of permission of the Ex-Ruler to possess the suit

land for the limited purpose of preservation, protection and enjoyment of the tree and the fruits thereof. Such possession and user of the land is

nothing but a licence granted for going over the land for collecting fruits of the tree and may include raising fences on or around the land so as to

prevent outsiders from damaging the tree or taking away the fruits.

Admittedly, the suit schedule land belongs to the State of Orissa. The record of right was published in the name of State. The kissam of the land

is Abadijogya Anabadi. In the remarks column, name of Dullab Paikaray had been mentioned with a remark that ""phalavogi"".

The date of entry into the suit land has not been mentioned. As held by this Court in Dibakar Pattnaik (supra) that such nature of possession of

the land, which is implicitly permitted for enjoyment of the fruits of the tree, is permissive and not adverse to the title of the true owner of the land.

The plaintiff therefore cannot be said to have acquired title to the suit land by way of adverse possession.

Admittedly the suit land belongs to the Government. The plaintiff has no title over it. Thus the suit for permanent injunction is not maintainable.

The substantial questions of law are answered accordingly.

In the wake of aforesaid, the impugned judgment is set aside. The appeal is allowed. Consequently the suit is dismissed. There shall be no

order as to costs.