Civil Suit No. 39 of 2014 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.146 of 2017 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment & decree dated 7th February, 2017 & 21st February, 2017 respectively passed by the learned Additional District Judge, Paralakhemundi, Gajapati, in R.F.A. No.02 of 2016(T) confirming the judgment & decree dated 5th December, 2015 & 18th December, 2015 respectively passed by the learned Senior Civil Judge, Paralakhemundi in Civil Suit No.39 of 2014. Smt. N. Saraswati ---- -versus- The Executive Officer, Parlakhemundi Municipality & Another …. Appellant …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s.Soubhagya Ku. Das, S.K. Tripathy & R. Babu Rao (Advocates)
Legal Reasoning
For Respondents - Mr.G.N.Rout, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH Date of Hearing : 22.03.2024 : Date of Judgment: 15.04.2024 D.Dash,J. The Appellant, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment & decree dated 7th February, 2017 & 21st Page 1 of 8 RSA No.146 of 2017 February, 2017 respectively passed by the learned Additional District Judge, Paralakhemundi, Gajapati, in R.F.A. No.02 of 2016(T). The present Appellant, as the Plaintiff, had filed the suit, i.e., Civil Suit No.39 of 2014 in the Court of the Senior Civil Judge, Paralakhemundi for declaration of her right, title and interest over the suit land as to have been so acquired/perfected by way of adverse possession. The suit, having been dismissed, the Appellant as the unsuccessful Plaintiff, had carried the Appeal under section 96 of the Code, which too has been dismissed. Hence, the present Second Appeal is at the instance of the Appellant (Plaintiff), who has remained unsuccessful before the Trial court as well as the First Appellate Court. 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. Plaintiff’s Case:- The suit property assigned with the municipal holding owned by Paralakhemundi Municipality, which accordingly stands recorde7d in the name of said Municipality under Patita Kisam. The Plaintiff is having no immovable property of her own. She, being an illiterate woman, was having no idea about the RSA No.146 of 2017 Page 2 of 8 settlement operation and as to when it so commenced in the locality. The Plaintiff, since the time of her husband has been in possession of the suit property by putting up construction over the same. She is continuing to be in possession of the same without any interruption all through for more than thirty years. Her possession is also asserted to be free from any disturbance and fully to the knowledge of the Municipality (Defendant No.1) as well as the State. She is paying the municipal holding tax and charges towards consumption of electricity having the electricity connection to the house standing over the suit land. It is stated that she had approached the Tahasildar, Paralakhemundi for transfer of the suit land in her favour, but that yielded no result. So, she served a notice under section 80 of the Code upon the Collector, Gajapati for settlement of the land in her favour and as that went without response, she too had had issued notice to the Municipality for settlement of the land. However, nothing materialized. The Plaintiff, therefore, claiming to be in open, peaceful and continuous possession over the suit land without any obstruction from any quarter in exercising all the rights as that of owner and to the knowledge of the Defendants (Municipality & State), states to have perfected title over the same by way of adverse possession. RSA No.146 of 2017 Page 3 of 8 4. The Defendant No.1, in its written statement, has denied the factum of possession of the suit land as claimed as also all other facts in connection thereto, as has been pleaded by the Plaintiff. It has categorically stated that the land is not recorded in the name of Municipality. 5. The Defendant No.2 has also denied that the factum of of possession over the suit land as projected by the Plaintiff. It is stated that the suit schedule property is under the Kisam “Pani Nala” and stands recorded in the name of the State Government. It is their specific case that the suit land is for passing of waste water of the locality. They also denied that the Plaintiff had ever applied before them for settlement of the suit land. 6. On the above rival pleadings, the Trial Court framed eight issues. Upon examination of the evidence and their evaluation, the Trial Court has gone to answer the crucial issue as to the claim of the Plaintiff that she has acquired the right, title, interest and possession over the suit land by adverse possession in the negative. This answer has led to the dismissal of the suit. The Plaintiff, being non-suited by the Trial Court, although has carried the First Appeal, that move has yield no fruitful result for her. RSA No.146 of 2017 Page 4 of 8 7. The Appeal has been admitted to answer the following substantial question of law:- “Whether the Trial Court as well as the First Appellate Court, with the evidence obtained, are right in negating the claim of the Plaintiff as to have perfected right, title and interest over the suit land by adverse possession?” 8. Mr.S.K. Dash, learned counsel for the Appellant (Plaintiff) submitted that basing upon the overwhelming evidence of long standing open and peaceful possession of the suit land by the Plaintiff and that too continuously without any obstruction from any other quarters, while exercising all the rights of ownership for upward of the period prescribed, the Courts below have completely gone wrong in answering the core issue against the Plaintiff. He further submitted that when no evidence has been tendered from the side of the Defendants that except the recording of the suit land, there was any action from their side to evict the Plaintiff from the suit land at any prior point of time and thereby denying the claim of the Plaintiff, the suit of the Plaintiff ought to have been decreed. He, therefore, urged for answering the substantial question of law in favour of the Plaintiff in decreeing her suit. 9. Mr.G.N.Rout, learned Additional Standing Counsel submitted that with the available evidence, the Courts below have rightly dismissed the suit as the ingredients for RSA No.146 of 2017 Page 5 of 8 establishment of the claim of the Plaintiff in acquiring the right, title and interest over the suit land have remained without being proved. 10. Keeping in view the submissions made, I have carefully read the judgments passed by the Trial Court as well as the First Appellate Court. 11. Admitted record position relating to the suit land is that it has been recorded in the name of the State and its Kisam is “Pani Nala”. The Plaintiff from the very beginning claims that the suit land belongs to the Municipality. That has been her pleading and she has also so stated during trial. Thus, it appears that the Plaintiff was not aware as to who is the recorded tenant in respect of the suit land and as such the owner at any point of time even till she deposed. The possession of the suit land by the Plaintiff even if accepted for a moment, it is on her own saying was under the impression that she has been so possessing the land of the Municipality. With such accepted position, the first foundational fact for acquisition of title over a piece of land by way of adverse possession that the possessor must start possessing the land denying the title of the true owner and asserting the ownership unto himself very much lacks in the present case. The Plaintiff when is unaware of the position that who is the true owner of the suit land, her possession for any length of time, even though RSA No.146 of 2017 Page 6 of 8 remains open, peaceful and continuous carries with it deficiency as to the hostility. The record of right of the suit land (Ext.B) has been published in the year 1979 and at least the knowledge of the Plaintiff as to the ownership of the suit land was then even from that document not known, which shows that she did not care to know the name of the owner but simply went on to possess the land as it was lying without being not used by anyone. 12. Now, coming to another important aspect, which appears to have been lost sight of by the Trial Court as well as the First Appellate Court, although it hits at the root is that a claim of acquisition of title by adverse possession over this particular land in view of its nature is untenable. The reasons are as follows. The kisam of the land is “Pani Nala” which is meant for passing of rain and waste water of the area. When that is the position as per the record, the Plaintiff is not denying the same. Rather the record of right (Ext.B) has established the Kisam of the land. Now, when a piece of land is recoded as Pani Nala, which is presumed to be so in view of the noting made in the record of right, which has gone unrebutted, the situation of such type of land is on the side of the homestead land of provide individuals and by the side of the road for passing the waste water coming from those homestead land as also the road and rain water. Over said piece of land, all the abutting land owners and also the public at large RSA No.146 of 2017 Page 7 of 8 using the road have the interest to that extent, which in fact is the liability of even the owner that said land must remain open for its user as such through the ownership remain with the owner. The Plaintiff falls within the class as she in that way, has the interest over the suit land too. A person, who has an interest over the suit land, which is meant for passing of the waste water from the nearby homestead lands and road as also the rain water, can never disown his/her his own interest in that way, which is a part of the ownership interest. Therefore, the claim of the Plaintiff as to have acquired the absolute right, title and interest over the same by virtue of adverse possession is not entertainable in the eye of law. 13. In the wake of aforesaid discussion and reason, this Court answers the substantial question of law against the Plaintiff, which leads to confirm the judgments and decrees passed by the Trial Court as well as the First Appellate Court in dismissing the suit. 14. Resultantly, the Appeal stands dismissed. No order as to cost. (D. Dash), Judge Signature Not Verified Basu Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 22-Apr-2024 11:28:58 RSA No.146 of 2017 Page 8 of 8