The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.433 of 2007 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Biranchi Narayan Tripathy -versus- State of Orissa and another …. …. Appellant Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. P.K. Rath, Sr. Advocate Ms. S. Das, Advocate For Respondents - Mr. P. Bharadwaj, Additional Standing Counsel For Respondent No.1 Mr. P.K. Satapathy, Advocate For Respondent No.2 CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :09.10.2023 :: Date of Judgment :10.11.2023 A.C. Behera, J. This Second Appeal has been preferred against the conforming judgment.
Legal Reasoning
The Appellant was the Plaintiff in the suit vide T.S. No.73 of 2001 and Appellant in the First Appeal vide R.F.A. No.38/12 of 2005-07. The Respondents were the Defendants in the suit vide T.S. No.73 of 2001 and Respondents in the First Appeal vide R.F.A. No.38/12 of 2005-07. RSA No.433 of 2007 Page 1 of 9 {{ 2 }} 2. The suit of the Plaintiff vide T.S. No.73 of 2001 was a suit for declaration, confirmation of possession and permanent injunction. 3. The case of the Plaintiff against the Defendant No.1 (State of Odisha) was that, he (plaintiff) and the defendant No.2 are two brothers and their father was late Kashinath Tripathy. 4. The suit land described in Schedule-A of the plaint has been continuing in the name of the State of Odisha (Defendant No.1) in all the settlements under Anabadi Khata. In the previous settlement prior to 1965, the kisam of the suit land was <Patra Jungle=. The father of the Plaintiff and Defendant No.2 i.e. Kashinath Tripathy made the suit land fit for cultivation by engaging manual labour after cutting the bushes from the same. Therefore, in the last settlement, R.O.R., the kisam of the suit land has been changed from <Patra Jungle= to <Atmamuli=. During last settlement operation, the Plaintiff and Defendant No.2 had filed objection case No.148 of 1975 for recording the suit land in their names jointly stating that, they are in continuous possession over the suit land since the time of their father i.e. since the year 1965 openly to the knowledge of Defendant No.1 (State), by which, they (Plaintiff and Defendant No.2) have perfected their title on the same by way of adverse possession. But, the Settlement Authorities recorded the possession of the Plaintiff and Defendant No.2 in the remarks column of R.O.R. only in respect of suit Plot No.223, but did not record their possession in the remarks column of the R.O.R. in respect of other two suit plots vide Plot No.223/1972, 384/1973, though they are in continuous possession over all the three suit plots for more than 35 years. Surprisingly, the Tahasildar, Balangir initiated a case vide Encroachment Case No.131/2000 under the O.P.L.E. Act for eviction of the Plaintiff and Page 2 of 9 RSA No.433 of 2007 {{ 3 }} Defendant No.2 from all the suit plots, although, they are in continuous possession over all the suit plots prior to 1965 and they have already perfected their title over all the suit plots since the year 1995 by way of adverse possession. So, as per law that, State (Defendant No.1) had no authority to initiate the encroachment case against them, because, State has got no objection against their title over the suit land. The further case of the Plaintiff was that, the suit properties are the only source of their income, because, they are managing their bread and food from the usufructs of the suit properties. So, due to perfection of their title over the suit properties by way of adverse possession, the right, title, interest and possession of the State (Defendant No.1) over the suit properties has already been extinguished/lost and the title of the Plaintiff and Defendant No.2 has already been created over the suit properties by the operation of law in course of their long continuous possession over the same for more than 35 years. But, when the Tahasildar, Balangir tried to evict them (Plaintiff and Defendant No.2) from the suit properties through initiation of above encroachment case, then the Plaintiff filed the suit vide T.S. No.73 of 2001 against the State (Defendant No.1) arraying his brother as performa Defendant No.2 praying for declaration of their title over the suit properties, confirmation of their possession on the same and to injunct the Defendant No.1 (State) permanently from evicting them (Plaintiff and his brother Defendant No.2) from the suit properties along with other reliefs, to which, they are entitled for. 5. Having been noticed from the Court in the suit vide T.S. No.73 of 2001, the Defendant No.1 (State) contested the same by filing its written statement after taking its stands inter alia therein that, in the revenue records of all the settlements, the status/kisam of the suit properties has Page 3 of 9 RSA No.433 of 2007 {{ 4 }} been reflected as <Patra Jungle=, which cannot be settled in favour of the anybody. Neither the father of the plaintiff nor the Plaintiff or his brother (Defendant No.2) were/are in possession over the suit properties. The Settlement Authorities were not empowered to record note of possession of the plaintiff and his brother (Defendant No.2) in the remarks column of the R.O.R. in respect of the suit Plot No.223. So, the question of perfection of the title by the Plaintiff and his brother (Defendant No.2) over the suit properties does not arise. Therefore, the suit of the Plaintiff is liable to be dismissed. 6. The Defendant No.2 being the own brother and supporter of the Plaintiff, he (Defendant No.2) was set ex parte without filing written statement. 7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether five numbers of issues were framed by the Trial Court in T.S. No.73 of 2001 and the said issues are:- Whether the plaintiff has cause of action to file this suit? Whether the plaintiff and defendant No.2 have got right, <1. 2. title, interest and possession over the suit land? 3. their title by way of adverse possession? Whether the suit is under valued? 4. Whether the plaintiff is entitled to the relief prayed for?= 5. Whether the plaintiff and defendant No.2 have perfected 8. In order to substantiate the aforesaid reliefs sought for by the Plaintiff against the Defendant No.1 (State), he (plaintiff) examined altogether five numbers of witnesses on his behalf including him as P.W.1 and relied upon several documents from his side vide Exts.1 to 15. But, on the contrary, the Defendant No.1 (State) examined one witness as D.W.1 and relied upon several documents on its behalf vide Exts. A to D. RSA No.433 of 2007 Page 4 of 9 {{ 5 }} 9. After conclusion of hearing and on perusal of the materials, documents and evidence available in the Record, the Trial Court answered all the issues against the plaintiff and in favour of the Defendant No.1 (State) and on the basis of the findings and observations made by the Trial Court in the issues, the Trial Court dismissed the suit of the Plaintiff vide T.S. No.73 of 2001 on contest against the Defendant No.1 and ex parte against the Defendant No.2 vide its judgment and decree dated 30.04.2005 and 07.05.2005 respectively giving observations in issue Nos.2 and 3 that, the Plaintiff has failed to establish the necessary requisites of adverse possession. 10. On being dissatisfied with the aforesaid judgment and decree of dismissal of the suit of the plaintiff vide T.S. No.73 of 2001 passed by the Trial Court, he (Plaintiff) preferred First Appeal vide R.F.A. No.38/12 of 2005-07 being the Appellant. 11. After hearing from both the sides, the said First Appeal vide R.F.A. No.38/12 of 2005-07 of the Plaintiff was dismissed on contest by the learned Additional District Judge, Balangir. 12. On being aggrieved with the aforesaid dismissal of the First Appeal vide R.F.A. No.38/12 of 2005-07 of the Plaintiff; he (Plaintiff) challenged the same by preferring this Second Appeal being the Appellant against the defendants by arraying them as Respondents. 13.
Legal Reasoning
I have already heard from the learned counsel for the Appellant and learned counsel for the Respondent No.1 (State). 14. Undisputedly, the R.O.R. of all the suit plots has been continuing in the same of State of Odisha (Defendant No.1) in all the settlements. The status/kisam of the suit plots in all the R.O.Rs. of all the settlements was/is Patra jungle. RSA No.433 of 2007 Page 5 of 9 {{ 6 }} The Plaintiff has prayed for declaration of his title over all the suit plots by way of adverse possession stating in his plaint that, his father was possessing the suit plots prior to 1965 and after the death of his father, he (Plaintiff) along with his brother (Defendant No.2) are possessing the same, which is more than 35 years. For which, according to him (Plaintiff), in the year 1995, they (plaintiff and defendant No.2) perfected their title over the suit properties by way of adverse possession on the ground of their long and continuous possession for more than 35 years and that too their possession has been noted in the remarks column of the R.O.R. of the last settlement in respect of suit plot No.223 in support of their long possession. 15. He (Plaintiff) has not at all pleaded in his plaint, on which particular date, his father had entered into the possession of the suit properties and on which particular date their possession over the suit properties became adverse to the true owner i.e. State (Defendant No.1) and on which particular date, their possession over the suit properties was matured to their title by way of adverse possession. There is also no evidence from the side of the Plaintiff about the same during trial of the suit. 16. The note of possession indicated in the remarks column of the R.O.R. of the suit plot No.223 in favour of the Plaintiff and his brother (Defendant No.2) also does not reveal, the date, from which, they are in possession over that plot No.223. The law relating to the essential requisites for establishing title over the Government properties like this suit at hand through adverse possession has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:- Page 6 of 9 RSA No.433 of 2007 {{ 7 }} (i) (2019) 8 SCC-page 729-Ravinder Kaur Grewal and others Vrs. Manjit Kaur and others-Paragraph 63-Indian Limitation Act, 1963-Article 64 and 65-property dedicated to public use- Government property-the Courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In such cases, on the land reserved for public utility, it is desirable that, rights should not accrue. The law of adverse possession may cause harsh consequences; hence the Courts constrained to observe that, it would be advisable that, concerning such properties dedicated to public use, it is made clear in the statute of limitation that, no rights can accrue by adverse possession. (ii) 2017(I) OLR 498 and 2017 (I) CLR 759-Sri Dibakar Patnayak Vrs. State of Orissa and another—Suit filed by Plaintiff on Government land on the basis of his possession to declare his title on the strength of adverse possession. Plaintiff filed the suit as an encroacher of the Government land. Mere continuous possession for the more than 30 years is not sufficient. To prove hostile animus against the Government, one has to come up with a very strong case and to show that, in spite of encroachment case, he is in possession of the land for more than 30 years from the date of the termination of the encroachment case. Held, plaintiff was a rank trespasser, for which, the Government started encroachment case against him. The suit for adverse possession must fail. 2021 (I) O.J.R.-Page 903— Dasarath Sharma and others (iii) vrs. State of Odisha- Adverse Possession4Mere pleading of open, continuous and long possession or enjoyment of the land without a specific assertion as to when the Plaintiffs entered into possession and when the same became adverse to the true owner, will not by itself be sufficient to claim title by adverse possession. 2017 (3) C.C.C. 509 (S.C.) & 2017 (II) CLR (S.C.) 1097— (iv) Dharampal Vrs. Punjab Wakf Board and others (paragraphs 39 & 40)4Adverse Possession4 Only averment that, defendant was in possession through his father since 1953, that itself do not constitute plea of adverse possession. Because, date from which, possession became adverse to Plaintiff not pleaded, likewise date of ripening of adverse possession also not pleaded. RSA No.433 of 2007 Page 7 of 9 {{ 8 }} (v) 2022 (I) C.C.C. Page-563 (Rajsthan)-Sanjay Kumar Jaluka Vrs. Jagdish Prasad Agarwal and another-Indian Limitation Act, 1963- Article 64 & 65—Adverse Possession4Merely being in possession of the property for a long time itself cannot create adverse possession and title in favour of person in possession of a property, unless he claims title in himself and that also to the knowledge of true owner. When the plaintiff neither by way of documentary and/or oral evidence has even claimed that, he was in possession of property as owner and has not even disclosed point of time, from which his possession became adverse to the true owner. But, entire emphasis of the plaintiff in plaint has been, his being in long possession. Held, merely being in possession of property for long time by itself cannot create adverse possession. The plea of adverse possession rightly rejected. 1999 (3) O.R.M.-2.40 (Ori)—Radha Kanta Sahu vrs. Bijay (vi) Pratap Singhdeo and others—Indian Limitation Act, 1963— Article 64 and 65- Adverse possession- Note of possession in R.O.R.- There is nothing to prove possession. R.O.R. of the last settlement noting, the remarks about forcible possession in favour of the Plaintiff without mentioning the date, proves her possession without title. There has been no element of adverse possession for acquiring a title to the property, as long possession cannot enure to the benefit of the plaintiff for acquiring title by adverse possession. (vii) 2018 (I) CLR-Page 1221—Lakhapati Dharua Vrs. Dullav Sahu and others—Indian Limitation Act, 1963- Article 64 & 65- Mentioning the name in remark column of M.S. R.O.R. is not sufficient- mere possession of the suit land for long time is not sufficient to hold that, the defendant has perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. 17. Here in this suit at hand, when the Plaintiff has not at all pleaded in his plaint, stating from which particular date, they are in possession over the suit properties and on which date, their possession on the suit properties became adverse to its true owner (State, Defendant No.1) i.e. from which date, they are possessing the suit properties as the owners of the same denying the title of the State (defendant No.1) and on which particular date their adverse possession on the suit properties had ripen Page 8 of 9 RSA No.433 of 2007 {{ 9 }} (matured) to title through adverse possession and when there is no indication in the remarks column of the R.O.R. of suit plot No.223, from which date, they (plaintiff and defendant No.2) are in possession over that suit plot No.223 and when he (Plaintiff) has given entire emphasis in his plaint only about their long and continuous possession since the time of his father without pleading the necessary essentials of the claim of title through adverse possession as clarified in the ratio of the aforesaid decisions of the Hon’ble Court and Apex Court, then at this juncture, the judgment and decree of dismissal of the suit vide T.S. No.73 of 2001 of the Plaintiff passed by the Trial Court and confirmation of the same by the First Appellate Court in R.F.A. No.38/12 of 2005-07 cannot be held erroneous or illegal. For which, the question of interfering with the same through this Second Appeal filed by the Appellant does not arise. Therefore, the Appeal filed by the Appellant must fail. 18. In the result, the Appeal filed by the Appellant is dismissed on contest, but without cost. The judgments and decrees passed by the Trial Court and as well as by the First Appellate Court in T.S. No.73 of 2001 and R.F.A. No.38/12 of 2005-07 respectively are hereby confirmed. Orissa High Court, Cuttack. 10th November, 2023//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 13-Nov-2023 15:29:09 RSA No.433 of 2007 Page 9 of 9