The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.430 of 2018 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 05.07.2018 and 18.07.2018 respectively passed by the learned Additional District Judge, Bhubaneswar in Title Appeal No.42 of 1990 confirming the judgment and decree dated 17.09.1990 and 15.10.1990 respectively passed by the learned Munsif, Bhubaneswar in O.S. No.131 of 1987-I. ---- Suniti Bala Sharma (Since Deleted) & Sushil Kumar Sharma & Others -versus- …. Appellants State of Orissa & Another …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.S.P.Mishra (Sr.Advocate) For Respondent
Legal Reasoning
- Mr.S.Pattnaik, AGA CORAM: MR. JUSTICE D.DASH Date of Hearing :05.01.2023 : Date of Judgment:27.01.2023 D.Dash,J. The Appellants, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment and decree dated 05.07.2018 and 18.07.2018 respectively passed by the learned Additional District Judge, Bhubaneswar, in Title Appeal No.42 of 1990. RSA No.430 of 2018 Page 1 of 7 {{ 2 }} By the same, the predecessor-in-interest of these Appellants had filed the Appeal under section 96 of the Code, which in view of his death was pursued by his legal heirs, in assailing the judgment and decree dated 17.09.1990 and 15.10.1990 respectively passed by the learned Munsif, Bhubaneswar in O.S. No.131 of 1987-I, has been dismissed and thereby, the dismissal of the suit filed by the predecessor- in-interest of the present Appellants, namely Dhirendranath Sharma, as the Plaintiff, has been confirmed. Dhirendranath Sharma, who is the predecessor-in-interest of these Appellants, had filed the suit seeking declaration of his right over the schedule ‘A’ land and permanent injunction against the Defendant-State and its officials to restrain them from distributing the suit land in favour of anyone else. The suit having been dismissed, Dhirendranath had carried the First Appeal. During pendency of the said Appeal, Dhirendranath died so these Appellants being substituted in his place persued the First Appeal, which has been dismissed. Hence, the present Second Appeal. 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. The Plaintiff’s case is that he came from East Bengal as a refugee to Bhubaneswar in the year 1952 and resided at Unit-III, Kharavelanagar, Bhubaneswar. He was leased out with the land under plot no.1 in Unit-III of the New Capital by the Defendant-State vide lease deed No.88 of 1959 for having shop-cum-residence. The extent of Page 2 of 7 RSA No.430 of 2018 {{ 3 }} the land was 25’ x 30’ bounded by the land under Plot No.2 in its North, open space on the South, conservancy lane on East and road on the West. It is stated that the Plaintiff since then remained in occupation of the space of 16’x25’ which was to the south of the leased land and was then remaining open. It is further stated that the said area of 16’x25’ described in schedule ‘A’ of the plaint which is the subject matter of the suit was not leased out to the Plaintiff. The leased land described in schedule ‘B’ and this land is in occupation of the Plaintiff since the time of lease of schedule ‘B’ land. Then these lands were lying vacant. The Plaintiff constructed house over these lands. He also constructed latrine and bathroom over the suit land. The Plaintiff then applied before the State who is the owner of the suit land to lease out the said suit land in his favour. The request was turned down. He then met the top Authorities of the State and gave his representation to that effect. Plaintiff’s wife also made representation for leasing out the said land. When the matter stood thus, there came the threat of dispossession of the Plaintiff from the suit land, from the side of the Defendant-State and its officials. He, therefore, filed the suit after serving notice under section 80 of the Code. The Plaintiff, in the suit prayed for declaration of his right, title, interest over the suit land, seeking further relief to restrain the Defendant from causing any disturbance over suit land. 4. The Defendant-State and its official, in their written statement, denied the facts pleaded by the Plaintiff that he has been in possession of the suit land since the year 1952. It is stated that after due consideration of case of the Plaintiff, he was allotted with the land measuring 25’x30’ which had been leased out in his favour and he was Page 3 of 7 RSA No.430 of 2018 {{ 4 }} given delivery of possession of the said land when he was not in occupation of the land on the southern side of the leased out land which was lying open. It is stated that the claim of the Plaintiff over 16’x25’, which is the suit land, is wholly illegal and in fact is violative of the as terms and conditions of lease. It is further stated that the Plaintiff has acquired no title over the said suit land which he falsely claims to be in occupation. It is also stated that the Plaintiff has never perfected the right, title over the suit land by way of adverse possession. The Plaintiff and his wife have been applying to get the suit land on lease and thereby, they have been going on admitting the title of the State and their possession to be wholly illegal. It is further stated that the Plaintiff in his application had admitted to have been in unauthorized occupation of Government land measuring 15’x25’ which he had prayed for being so allotted. According to the case of the Defendant, open space are left for specific reasons and for that, there was no occasion to consider the applications of the Plaintiff, his wife and son. With these pleadings, they have prayed to dismiss the suit. 5. In view of the above rival pleadings, the Trial Court has framed as many as four issues. Coming to answer the crucial issue regarding the acquisition of title over the suit land by way of adverse possession; upon examination of evidence and their evaluation, the answer has been given against the Plaintiff. The Plaintiff having failed to prove to have perfected his title over the suit land by way of adverse possession in view of the admission Page 4 of 7 RSA No.430 of 2018 {{ 5 }} as to the title over the suit land resting with the Defendants, the prayer of the Plaintiff to declare his right, title, interest and possession over the suit land has been rejected. 6. The Plaintiff thus being non-suited by the Trial Court having preferred the First Appeal has again suffered as the dismissal of the suit ordered by the Trial Court has been confirmed. Hence, the Present Second Appeal. 7. The Appeal has been admitted to answer the following substantial question of law:- “Whether in the facts and circumstance as merited from the pleadings and evidence on record, the Courts below even while refusing to grant the relief of declaration of right, title interest and permanent injunction over the suit land as prayed for by the Plaintiffs ought to have decreed the suit holding with the Plaintiffs being in settled possession of the suit land are only to be evicted by following out process of law’’. 8. Learned Senior Counsel for the Appellant, at the outset, inviting the attention of the Court to the pleadings in the plaint and the evidence on record submitted that the Plaintiff has proved that he has been in possession of the suit land since the time when he remained in possession of the land leased out to him which has been described in schedule ‘B’ of the plaint. He submitted that the schedule ‘A’ land which is the suit land lies to the south of the leased land in schedule ‘A’ and as it was lying open being not allotted or leased out to anyone, the RSA No.430 of 2018 Page 5 of 7 {{ 6 }} Plaintiff since has remained in possession of the said land for all these period which amounts to his settled possession; the Courts below ought to have declared that his possession in respect of the suit land shall stand protected until evicted by following due process of law. 9. Learned counsel for the State submitted that the Plaintiff’s suit is for declaration of right, title, interest over the suit land and based on the claim of acquisition of title over the suit land by way of adverse possession. He submitted that when concurrent findings have been rendered by the Courts below that the Plaintiff has failed to establish his claim over the suit land as to have acquired title over it by way of adverse possession, present suit as framed, keeping in view the reliefs claimed therein has been rightly dismissed. 10. Keeping in view the submission made, I have carefully read the judgments passed by the Courts below. 11. Admittedly, the Plaintiff is the lessee in respect of schedule ‘B’ land which covers an area of 25’x30’. The suit land in schedule ‘A’ is on its adjacent south. It has been specifically pleaded in the plaint that although the Plaintiff was in possession of an area of 46’x25’ out of the said plot since the year 1952, the Defendant-State leased out only 25’x30’ in his favour. Thus it is said by the Plaintiff that he being in occupation of more area of land in the field was favoured with a lease of lesser area of land. The Defendant having leased out of area 25’x30’ in favour of the Plaintiff, his prior possession in respect of that area as well as some more area as he claims losses all its significance. His possession from the time of the lease is thus be treated in so far as the leased land as RSA No.430 of 2018 Page 6 of 7 {{ 7 }} the lessee. Thus the Plaintiff being the lessee of an area of land measuring 25’x30’, his occupation even though it was from a period prior to that lease or thereafter, in so far as the suit land is considered in the eye of law is taken to be as that of an trespasser/intruder/ and under no circumstance, it can be said to be in his settled possession. He being a lessee of 25’x30’ area of land under the State, his occupation in respect of the adjoining land belonging to the lesser-State has to be taken as permissive and at the mercy was lesser State and it has said to be in his precarious possession. The Plaintiff thereafter having gone on making application before the Defendant-State and its authority for being leased out with that land in suit, the advancement of the claim by him as to have acquired title over the said land by way of adverse possession in filing the suit and seeking decree in that regard militates against any case of his being in settled possession. For the aforesaid discussion and reasons, this Court is unable to subscribe to the submission of learned Senior Counsel for the Appellant that the Courts below in the present suit, as laid seeking the reliefs as aforesaid have erred in dismissing the same in its entirety. The substantial question of law is accordingly answered against the Plaintiffs which leads to confirm the judgments and decrees passed by the Courts below. 12. In the wake of aforesaid; the Appeal stands dismissed. However, there shall be no order as to cost. Gitanjali RSA No.430 of 2018 (D.Dash), Judge. Page 7 of 7