The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.226 OF 2004 In the matter of an appeal under Section-100 of the Code of Civil Procedure has assailed the judgment and decree dated 27.03.2004 and 08.04.2004 respectively passed by the learned Civil Judge (Senior Division), Nabarangpur in Title Appeal No.02 of 2000 by confirming judgment and decree dated 21.01.2000 and 04.02.2000 respectively passed by the learned Civil Judge (Junior Division), Nabaangpur in Title suit No.02 of 1992. the ---- Narasingh Pujari ::: Appellant -versus- Assistant Settlement Officer, Papadahandi & Others. ::: Respondents Appeared in this case by Hybrid Arrangement (virtual/physical mode) ============================================== For Appellant - Mr. A.K. Nanda, Advocate. For Respondent
Legal Reasoning
- Mr. S. Pattnaik, Addl. Government Advocate. CORAM: MR. JUSTICE D.DASH DATE OF HEARING:: 06.01.2023, DATE OF JUDGMENT:: 27.01.2023 These Appellant in filing this Appeal under Section-100 of the Code of Civil Procedure 1908 (for short, ‘the Code’) has assailed the judgment and decree dated 27.03.2004 and 08.04.2004 respectively passed by the learned Civil Judge (Senior Division), Nabarangpur in Title Appeal No.02 of 2000. Page 1 of 9 // 2 // By the same, the Appeal filed by the present Appellant under section-96 of the Code being the unsuccessful Plaintiff in Title Suit No. 02 of 1992 in the Court of learned Civil Judge (Junior Division) has been dismissed and thereby, the order of dismissal of the suit filed by the present Appellant as the Plaintiff passed by the Trial Court has been confirmed. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 3. Case of the Plaintiff is that the property described in Schedule-A land locally called as ‘Ambagacha Dangara’ under Plot No.468 measures Ac.4.80 cents and those described in Schedule-B property locally called as ‘Batogacha Dangara’ under Plot No.469 measuring Ac.4.09 cents are situated in village: Chikili. The Plaintiff claims that these properties are in his possession since the time of his ancestor. It is stated that the Schedule-A property adjoins theIR residential house and Schedule-B property adjoins the Schedule-A. These properties being unsurveyed had been kept in basti site of village Chikili. The father of the Plaintiff had planted mango and other fruit bearing trees on the portion of the Schedule-A and he was also cultivating the same by raising Mandia and other Page 2 of 9 // 3 // crops. It is further stated that he was raising variety of crops over Schedule-B property and thus was in cultivating possession of both Schedule-A & B properties. After the death of his father, the Plaintiff He claims exclusive possession of the same in the same manner as his father was, as before. It is also stated that from the time of the father of the Plaintiff and thereafter the property in Schedule-A and B land are in their possession continuously without any interruption from any quarter and that was open and peaceful too. The period of possession by the time of filing of suit is stated to have stretched over a period of 70 years. In the settlement operation of the year 1988-89, the land was demarcated and was assigned with Plot No.463 measuring Ac.4.80 cents and similarly, Schedule-B was assigned with Plot No.469 measuring Ac.4.09 cents. Schedule –A land was recorded in the name of the Plaintiff whereas Schedule-B was recorded in the name of the State. However, in the rent camp that Schedule-A land was divided in two plots i.e. Plot No.468 admeasuring Ac.0.80 cents and Plot No.468/868 admeasuring Ac.1.42 cents, which stood recorded in the name of the State under ‘Sarba Sadharana’ category with note of possession in favour of the Plaintiff. The Plaintiff claims to have raised objection to said recording which according to him however did not yield any fruitful Page 3 of 9 // 4 // result. It is stated that the Plaintiff has been in possession of the Schedule-A & B and continuously without any interruption for more than 70 years from the time of his ancestor in open and peaceful manner and thus he has the title over the same. 4. The Defendant-State and its Officials contested the suit in stating that the Plaintiff has no right, title and interest over the suit land. It is stated that the Plaintiff was never in possession of the suit land from the time of his ancestor for a period of 70 years as he claims and his father had never planted mango and other fruit bearing trees on the portion of the Schedule-A land and he was also not in cultivating possession of these suit land. It is further stated that this Plaintiff has also not remained in possession of the same. It is stated that in the first settlement operation in the year 1958, Schedule-A land was recorded under Plot No.91, Khata No.176/2 and kept as basti site whereas Schedule-B was recorded under Plot No.63 Khata No.159 and kept as Gochara land. In the recent settlement operation, the ROR has been published on 03.08.1990 wherein the ROR Schedule-A land has been recorded under Khata No.309 with kisama ‘Basti’ and Schedule-B land under Khata No.308 as ‘Gochara’. It is further stated that the Plaintiff having encroached a portion of land under Sabik Plot No.91, which Page 4 of 9 // 5 // corresponds to Hal Plot No.468/868 measuring Ac.3.00 cents, an encroachment proceeding has been initiated under the O.P.L.E. case No.867 of 1991, which is still pending. Their case is that the Plaintiff has never acquired title over the suit land in Schedule-A and Schedule-B by way of adverse possession as assertively pleaded. 5. The Trial Court on the above rival pleadings having framed seven (7) issues has answered all those against the Plaintiff in holding with the Plaintiff had not acquired any title over the suit land in Schedule-A & B by way of adverse possession. This answer has been rendered as it appears from the judgments of the Trial Court upon details examination of evidence and their analysis from every possible angle as also keeping in view the settled position of law which have been take note of in the said judgment. Such answer, has resulted the dismissal of the suit filed by the Plaintiff. The Plaintiff being aggrieved by such order of the trial court in non-suiting him, had carried the First Appeal which too has been unsuccessful. Hence, the present Appeal. 6. The Appeal has been admitted to answer the following substantial question of law:- Page 5 of 9 // 6 // “Whether the concurrent findings of the Courts below that the Plaintiff has not proved his case of acquisition of the title over the suit land by way of adverse possession is the outcome of perverse appreciation of evidence and without taking into account the settled position of law holding the field?” 7. Learned Counsel for the Appellant submitted that with the overwhelming evidence available on record that the Plaintiff is in possession of the suit land from the time of his ancestor and the possession has all along been open, peaceful and continuous without any interruption from any quarter for about a period of 70 years by the time of institution of the suit, the Courts below ought to have held that the Plaintiff has acquired the title over the same by way of adverse possession. He submitted that such possession of the suit land by the Plaintiff has been proved to be the knowledge of the true owner (State) as can be seen from the initiation of the encroachment proceeding. He further submitted that the possession of the Plaintiff over the suit land on the available evidence has to be held to be in exercise of all such right of ownership and hostile to the true owner- State. According to him, the finding on the crucial issues that the Plaintiff has not acquired title over the suit land in Schedule-A & B by way of adverse possession is based on perverse appreciation of Page 6 of 9 // 7 // evidence and thus even though the same is concurrent, the same should not be allowed to stand. 8. Learned Counsel for the Respondents submitted all in favour of the findings returned by the Courts below. According to him, the Trial Court as well as the First Appellate Court having analyzed the evidence from every possible angles and keeping in view the settled position of law holding the field of acquisition of title over the immovable property by way of adverse possession by the possessor, have rightly held against the case/claim of the Plaintiff. He submitted that even though for a moment, it is accepted from the evidence that the Plaintiff has been in possession for quite some time, the ingredients required to be established by the Plaintiff in support of his claim of acquisition of title by way of adverse possession are wholly wanting in the pleading as well as evidence let in and therefore, the Plaintiff has been rightly non-suited. 9. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the evidence on record. 10. It is the case of the Plaintiff that it has been in possession of the suit land from the time of his ancestor for a period of 70 years by Page 7 of 9 // 8 // the time of institution of the suit. It is stated that the possession of the Plaintiff is to be traced to the year, 1956 in view of the notice that he had received from the Board of Revenue, which has been admitted in evidence and marked Ext.2. The Courts below having examined that notice, Ext.2 along with the evidence as obtained has come to a conclusion that it does not relate to the suit land. This finding of fact is concurrent and is not also challenged by saying that the Courts below have ignored something which appears in that notice in arriving at that conclusion which it would have been taken into account, the conclusion to the contrary is inevitable. When it is simply stated that Plaintiff has been in possession of the suit property from the time of his ancestor, the pleadings wholly lack on the aspect that it was in exercise of all such rights as that of the owner and in denial of the title of the true owner-State to its knowledge. There is also no evidence on that score. It is the settled position of law, mere possession of the land by the possessor for whatever length of time, it may, be does not make out a case for acquisition of title over the said immovable property by way of adverse possession. In my considered view the Courts below are right in answering the crucial issue that the plaintiff has failed to prove his claim/case of acquisition of title over the suit by way of Page 8 of 9 // 9 // adverse of possession having rightly found from the evidence upon their analysis in the backdrop of the pleading that such a case is not made out. This Court finds absolutely no perversity of the said concurrent finding returned by the Courts below since nothing surfaces to say that in that exercise the Courts below have either overlooked any material evidence available on record or that have read something which are extraneous to the evidence on record to take a view that had those been rightly taken into consideration, the finding would have been to the contrary, in favour of the Plaintiff. The aforesaid discussion and reasons thus provides answer to the substantial question of law against the Plaintiff. 11. In the result, the Appeal stands dismissed. There shall however be no order as to cost. Judge. (D. Dash), Narayan Page 9 of 9