The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.364 of 2018 (From the judgment dated 17.5.2018 passed by learned District Judge, Kendrapara in R.F.A. No.72/2015) A.F.R. Ashok Kumar Jena and others … Appellants -versus- The Tahasildar, Kendrapara and others … Respondents Advocates appeared in the case through hybrid mode: For Appellants : Mr.B.C.Panda, Advocate. -versus- For Respondent Nos.1 to 3 : Mr. A.R.Dash, A.G.A. For Respondent Nos.4 to 11 : Mr. J. Bhuyan, Advocate --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 05.07.2024. R.S.A. No.364 of 2018 Page 1 of 17 Sashikanta Mishra,J. This is an appeal by the Plaintiffs against a confirming judgment. The judgment passed by learned District Judge, Kendrapara on 17.5.2018 in R.F.A. No.72/2015 is under challenge in the present appeal whereby the judgment dtd.28.9.2015 followed by decree passed by learned Sr. Civil Judge, Kendrapara, in C.S. No.398/2004 was confirmed. 2. For convenience, the parties are referred to as per their respective status in the trial Court. 3. The following genealogy shows the relationship
Legal Reasoning
between the Plaintiffs; G E N E A L O G Y Late Sananda Late Ananta Giridhari Late Fakira Late Babaji (1992) =Wife Uma Jogendra 0 Ashok Sashikala Bichakhyana Sakuntala Sailabala Sulakhyana R.S.A. No.364 of 2018 Page 2 of 17 4. The plaintiffs’ case is that one Sananda was their common ancestor. He had three sons namely, Ananta, Giridhari and Fakira. Giridhari died issueless. Fakira had one son namely, Jogendra who also died issueless. Ananta had a son named Babaji. The Plaintiffs are the children of Babaji and his successors in interest. It is claimed that Jogendra being issueless was in joint mess with Babaji. After his death Babaji being the Class-II legal heir succeeded to his property. The property was recorded in the name of Jogendra in 1930 settlement ROR. Babaji being in peaceful possession sold some portion from the recorded property i.e. from Sabik Khata No.613 on 1.5.1989 to one Lingaraj Jena vide RSD No.1677 and delivered possession thereof. The remaining portion of the property, i.e. Plot Nos.1485 and 1486 is the subject matter of the suit. The suit land was rent-free under R.S.A. No.364 of 2018 Page 3 of 17 ex-landlord with sthitiban status of Jogendra. After abolition of intermediary interest, Jogendra continued to be a tenant under the State Government. Babaji having succeeded to his property after his death, filed an application before the Tahasildar, Kendrapara for fixation of fair and equitable rent, but the same was wrongly treated as a case under OEA Act and registered as OEA Case No.580/1988. The said case was dismissed by order dated 29.12.1990. Babaji challenged the said order before this Court in OJC No.2754/1992. During pendency of the case, Babaji died and his legal heirs were substituted. The Writ Petition was allowed vide order dated 22.4.1996 holding that the provisions of OEA Act are not applicable to the case of the Plaintiffs and directed the Tahasildar to consider the application in accordance with law. However, the Tahasildar by order dated 27.8.1997 again rejected the application with a finding that there is civil dispute and that the Appellants are not in possession of the suit land. The Plaintiffs again R.S.A. No.364 of 2018 Page 4 of 17 approached the Tahasildar for acceptance of rent and they were assured that rent could be settled in the major settlement operation. The Plaintiffs filed petition before the Settlement authority during settlement operations, but the same was not entertained. Since the Defendant Nos.4 to 11 caused disturbances, the Plaintiffs filed the suit seeking declaration of their right, title and interest over the suit land and permanent injunction against the Defendant Nos.4 to 11. 5. Defendant Nos.1 to 3 being State-defendants entered appearance and filed their written statement separately mainly challenging the maintainability of the suit on the ground of limitation. It was also stated that the Plaintiffs are not in possession. Defendant No.4 (Ka) filed a written statement contesting the suit. Defendant Nos.5 to 11 also filed their written statement questioning the maintainability of the suit R.S.A. No.364 of 2018 Page 5 of 17 on the ground of limitation, cause of action etc. On facts, it was pleaded that the Plaintiffs are not related to Jogendra at all. After death of Jogendra, the suit land was recorded in the name of Government as Abada Jogya Anabadi. The Defendant Nos.4 to 11 are in possession of the suit land. Babaji was never in possession of the suit land. It is specifically claimed that the defendants are in possession of the suit land since 1970 to the knowledge of the Plaintiffs as well as Defendant Nos.1 to 3 and hence, they have otherwise acquired title by way of adverse possession. 6. On the rival pleadings as above, the trial framed the following issues for determination; (I) Is the suit maintainable? (II) Whether the plaintiffs have any cause of action to file the suit? (iii)Whether the suit is barred by laws of limitation? (IV)Whether the plaintiffs have sent notice to the Defendants No.1 to 3 in compliance to Section 80 of C.P.C.? (V)Whether the plaintiffs are the survivors of deceased Jogendra Jena? (VI)Whether the plaintiffs have right, title, interest and possession over the suit land? R.S.A. No.364 of 2018 Page 6 of 17 (VII) Whether the plaintiffs are entitled for a decree of permanent injunction against the Defendants No.4 to 11? 7. Taking up Issue Nos.5 and 6 for consideration together, the trial court held that after rejection of the O.E.A. Case No.580/1988 the Plaintiffs never approached the settlement authorities for fixation of fair and equitable rent. From the copy of the order passed by the Tahasildar, it is evident that neither Babaji nor his successors were found to be in possession over the land, rather from the documents marked Exts.A and B series, it is seen that the Tahasildar initiated encroachment cases against Defendant Nos.4 to 11, which proves their possession. The Plaintiffs did not seek the relief of recovery of possession. The suit is therefore, hit by Section 34 of the Specific Relief Act. On Issue No.7, the trial Court held that the Plaintiffs have failed to establish their title and possession over the suit land and hence, are not entitled to decree of permanent injunction. On Issue No.3, the trial court held that the suit not having R.S.A. No.364 of 2018 Page 7 of 17 been filed within three years from the date of dismissal of the O.E.A case is barred by limitation. In view of the findings rendered on the main issues as above, the remaining issues were answered against the Plaintiffs and the suit was accordingly dismissed. 8. Being aggrieved, the plaintiff carried the matter in appeal to the District Court. Learned District Judge after examining the oral and documentary evidence found that the property was recorded in the name of Radha Govinda Jew and therefore, as per proviso to Sub-section (3) of Section 8, Section 7(d) and 7 (A) of the O.E.A Act read with Section 3 (XIII) of the OHRE Act, none except the deity has right, title and interest over the property. The first appellate court further held that the Plaintiffs did not adduce any evidence of their approach to the settlement authorities for fixation of fair and equitable rent. On the other hand, it was borne out from the evidence on record that Defendant Nos.4 to 11 are in possession. The first appellate court further held that the suit being filed in the year 2004 is R.S.A. No.364 of 2018 Page 8 of 17 barred by limitation as per Article 58 of the Limitation Act since the cause of action arose on 27.8.1997. Thus, holding that the plaintiffs have neither title nor possession and that the suit is barred by limitation, the First Appellate Court found no reason to interfere with the impugned judgment of the trial court. 9. Being further aggrieved, the Plaintiffs have approached this Court in the present appeal, which has been admitted on the following substantial questions of law; (i) Whether the courts below are justified in holding that it is bounden duty of plaintiffs to prove when Jogendra died and Babaji Jena survives the property of Jogendra as his Class-II legal heir? (ii) Whether the learned Court below is justified in holding that the suit is barred by law of limitation in view of Article 58 of the Act?
Legal Reasoning
10. Heard Mr. Bhaskar Chandra Panda, learned counsel for the Plaintiff-Appellants, Mr. A.R.Dash, learned Addl. Government Advocate for State- Defendants and Mr. J. Bhuyan, learned counsel appearing for the Respondent-Defendant Nos.4 to 11. R.S.A. No.364 of 2018 Page 9 of 17 11. Mr. Panda would argue that both the Courts below committed gross error in holding that Jogendra is not related to Babaji even though in the maintenance khatian of the suit Mouza (Ext.8) it is clearly reflected that both are sons of Sananda. Moreover, Babaji sold some area from the recorded land of Jogendra way back on 01.5.1989 vide R.S.D. marked as Ext.6. This evidence coupled with the R.O.R. marked Ext.10 recorded in the name of Jogendra clearly reveals the relationship between him and Babaji. Mr. Panda, further submits that despite order passed by this Court that the O.E.A Act is not applicable to the case of the Plaintiffs, the First Appellate Court did not consider the effect of the same. Mr. Panda further argues that Defendant Nos.4 to 11 having raised the plea of adverse possession implicitly proves the title of the plaintiff. Since there was a threat to the possession of the Plaintiffs, the same gave rise to a valid cause of action for which the suit was filed. R.S.A. No.364 of 2018 Page 10 of 17 The finding that the suit is barred by limitation, cannot therefore be sustained. 12. Mr. A.R.Dash, learned Addl. Government Advocate, would submit that the suit land was recorded in the name of ex-landlord-Radha Govinda Jew Thakur with Jogendra Jena as tenant. The nature of tenancy was described as Madhya Satwadhikari. After vesting, the State of Odisha became the landlord with the land being recorded as Abada Jogya Anabadi. It was therefore, incumbent upon the Plaintiffs to prove their antecedent title, which they miserably failed to do. Unless the Plaintiffs can prove their title and possession, they are not entitled to any relief. 13. Mr. Bhuyan, learned counsel appearing for the Defendant Nos.4 to 11, has supported the findings rendered by both the Courts below by submitting that from the notices issued to the said Defendants in the encroachment cases vide Exts.A and B, the possession of the Defendants is clearly proved. Mr. Bhuyan R.S.A. No.364 of 2018 Page 11 of 17 further submits that the suit is otherwise barred by limitation not having been filed within three years from the date of dismissal of their application by Tahasildar. He further submits that the deity or Marfatdar has not been impleaded as party nor anything been mentioned in this regard in the Hal ROR regarding possession of the Plaintiffs in the Remarks Column. 14. As already stated, the claim of the Plaintiffs over the suit property is through their predecessor in interest Babaji, who claims to have succeeded to the property of Jogendra, who died issueless. It was therefore, incumbent upon the Plaintiffs to first prove the relationship between Babaji and Gajendra. In this regard learned counsel for the Appellants has heavily relied upon the document marked Ext.8, which is the maintenance Khatian wherein, it is clearly mentioned that Ananta Jena, Giridhari Jena and Fakira Jena are sons of Sananda Jena. This Court has also perused Ext.8, which is available in the L.C.R. There appears to R.S.A. No.364 of 2018 Page 12 of 17 be some force in the submission of Mr. Panda, learned counsel for the Plaintiffs that Ext.8, prima facie, shows that Ananta, Giridhari and Fakira are brothers being the sons of Sananda. If such is the case, then it is not understood as to why the sabik settlement R.O.R. published on 31.5.1930 was recorded only in the name of Jogendra Jena leaving out his brothers though at least appellant Babaji was alive by then. It would therefore be difficult to place reliance on Ext.8 alone to determine the relationship between Jogendra and Babaji so as to hold the latter to be a Class-II heir of the former. As it further appears, the Plaintiffs have not proved that they are in possession of the suit property. On the other hand, the defendants have adduced evidence in the form of Exts.A and B to show that they are in possession, for which encroachment cases were instituted against them in which they have paid penalty. Of course, this by itself does not prove the title of Defendant Nos.4 to 11, which they claim to have acquired by way of adverse possession. Since the R.S.A. No.364 of 2018 Page 13 of 17 suit land now stands recorded in the name of the State, the plea of adverse possession, if any, can only be against the State being the true owner particularly, in the absence of proof of title of the Plaintiffs over the suit property. In doing so, the Defendant Nos.4 to 11 have not come forward with a clear case i.e. the date of their entering into the possession, so that the prescribed period could be determined for the purpose of adverse possession. The Defendant Nos.4 to 11 in their written statement have also claimed adverse possession against the Plaintiffs, which implies admission of title of the Plaintiffs, but then as has been rightly held by the Courts below, the Plaintiffs can succeed only on the strength of their own case and not on the basis of the weakness, if any, in the case of the defendants. This Court, therefore, finds that the property stands recorded in the name of the State as Abada Jogya Anabadi in the Hal settlement. The Plaintiffs have not been able to substantiate their claim of title by adducing cogent and acceptable evidence. R.S.A. No.364 of 2018 Page 14 of 17 They have also failed to prove their possession over the suit land. The Defendant Nos.4 to 11 have also failed to prove their title over the suit land either by adverse possession or otherwise. However, there is some evidence to show that said Defendants are in possession. 15. As regards the question of limitation, there is no dispute that the application filed by the Appellants- Plaintiffs before the Tahasildar, Kendrapara, being registered as O.E.A Case No.580/1988 was dismissed on 27.8.1997. The Plaintiffs claim to have approached the settlement authorities for fixation of fair and equitable rent during the major settlement operations, but not a scrap of paper was produced in support thereof. Since it has been otherwise proved that the Plaintiffs are not in possession, the filing of the suit citing threat to their possession by Defendant Nos.4 to 11 as a cause of action cannot obviously be accepted. Under such circumstances, Article 58 of the Limitation Act would apply, which prescribes the period of three R.S.A. No.364 of 2018 Page 15 of 17 years for filing of the suit for declaration. The cause of action of the Plaintiffs must therefore be deemed to have arisen on 27.8.1997 when the Tahasildar rejected their application for fixation of fair rent. The suit having been filed in the year 2004 is therefore, grossly barred by limitation. 16. Thus, on a conspectus of the analysis of facts and law and the discussion made thereon, this Court finds that both the substantial questions of law framed by this Court at the time of admission of the appeal are to be answered against the Plaintiff- Appellants. In other words, this Court finds no infirmity much less any justified reason to interfere with the finding of the Courts below that the Plaintiffs failed to prove their relationship between Babaji and Jogendra and consequently, their claim of antecedent title over the suit property. Further, this Court concurs with the findings of the First Appellate Court that the suit is barred by limitation. R.S.A. No.364 of 2018 Page 16 of 17 17. In the result, the appeal fails and is therefore, dismissed. There shall be no order as to cost. …………….……..………. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Jul-2024 16:28:23 R.S.A. No.364 of 2018 Page 17 of 17