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IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.272 of 2022 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment & decree dated 16th July, 2022 and 25th July, 2022 respectively passed by the learned District Judge, Ganjam in R.F.A. No.121 of 2016 confirming the judgment & decree dated 15th November, 2016 & 19th November, 2016 respectively passed by the learned Civil Judge (Junior Division), Berhampur in C.S. No.18 of 2011. ---- Bimalendu Sahu (Since Dead) by his LRs, namely, Smt. Kuntala Kumari Sahu & Others -versus- …. Appellants State of Odisha & Another …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants -
Legal Reasoning
Mr.Sanjay Ku. Pradhan and Mr.G.K. Sundaray (Advocates) For Respondent - Mr.G.N.Rout, Additional Standing Counsel CORAM: MR. JUSTICE D.DASH Date of Hearing : 02.01.2024 : Date of Judgment :08.01.2024 D.Dash,J. The Appellants, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have the RSA No.272 of 2022 Page 1 of 9 {{ 2 }} judgment & decree dated 16th July, 2022 and 25th July, 2022 respectively passed by the learned District Judge, Ganjam in R.F.A. No.121 of 2016. One Bimalendu Sahu, as the Plaintiff, had filed C.S. No.18 of 2011 in the Court of the learned Civil Judge, Junior Division, Berhampur seeking the declaration of his right, title, interest and possession over the suit land by way of adverse possession with other reliefs arraigning the Respondents (State and its functionaries) as the Defendants. During pendency of the said suit, Bimalendu, having died, his legal representatives (present appellants), being substituted as the Plaintiffs, have prosecuted the suit. The Trial Court, having dismissed the suit, these Appellants, as the unsuccessful Plaintiffs, had carried the Appeal under Section 96 of the Code, which has been dismissed. 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. Plaintiffs’ Case:- One Ghani Shariff had been permitted to cultivate the land measuring Ac.1.06 cents under Survey No.182/2 of Village- Bhapur for a period of thirty years with effect from 01.01.1946 by the State under Scheme, floated in the name and style of “Grow RSA No.272 of 2022 Page 2 of 9 {{ 3 }} More Food”. The lease was further extended and accordingly, Ghani Shariff continued to cultivate the land under his possession. He died in the year 1965 and thereafter, his son, namely, Gafffar Shariff and widow Amina Bibi continued to possess the same with their other lands. In the year 1963, the Tahsildar, Berhampur inspected the land and submitted a report to the effect that Ghani Shariff was in possession of Ac.1.70 decimals as against Ac.1.06 cents, which had been granted to him on lease. No objection was granted for assigning the land under cultivation of Ghani Shariff, who was found to be a poor landless Ex-Military personnel. The Tahasildar, Berhampur recommended the same vide notification dated 30.06.1954. However, no action was taken on the said report of the Tahasildar despite several approaches being made by Ghani Shariff and his successors. Finally, the Revenue Divisional Commissioner, Southern Division, Berhampur, in M.C. No.6 of 1967, considered the application of Ghaffar Shariff and directed that the suit land under Survey No.182/2 be assigned to him without charging any salami. This was ordered on 04.10.1976. However, in the meantime, proceeding under the Orissa Prevention of Land Encroachment Act, 1954 (for shot, ‘O.P.L.E. Act’) was initiated against Amina Bibi, wife of Ghani Shariff which was numbered as Land Encroachment Case No.96 of 1976. In the said proceeding, the Tahasildar, Berhampur, by order dated RSA No.272 of 2022 Page 3 of 9 {{ 4 }} 14.05.1983, took a view that the case was not maintainable as he lacks the competency to decide the issue as to acquisition of title over the suit land by way adverse possession. He, therefore, sought for instruction from the Collector, Ganjam, who recommended to the R.D.C, in his letter dated 6.6.1967 to examine the matter and move the Government in the Department of Revenue with for onward communication of necessary orders as to the settlement of the land in favour of Amina Bibi and others. When the matter stood thus, the Tahasildar, Berhampur again initiated Encroachment Case No.233 of 1988 against the original Plaintiff and other purchasers in the said layout and ordered for their eviction. Then, the original vendors of the Plaintiff with other filed Appeals before the S.D.O., Berhampur, which were dismissed. Revisions, being carried before the A.D.M., Ganjam at Chatrapur, the orders passed by the Authorities below were set aside and the matters were remitted to the Tahasildar for taking steps for settlement of the land in favour of those persons. In the meantime, the R.D.C., initiated suo motu proceeding and ordered for eviction of Amina Bibi from the land. Then, Amina Bibi and others challenged the said order of R.D.C. by filing Writ Petition before this Court, which was numbered as OJC No.6633 of 1993. Similarly, other purchasers preferred Writ Petition, i.e., OJC No.6259 of 1993. This Court, by a common order dated RSA No.272 of 2022 Page 4 of 9 {{ 5 }} 19.01.1996, allowed this Writ Petitions and directed them to place their dispute before the Competent Civil Court for redressal. It is the further case of the Plaintiffs that Amina Bibi, being in need of money, sold the land through her Power of Attorney, namely, Debendranath Panigrahi and the Plaintiff purchased the suit land from one Kumari Devi Sahu on 16.04.1994, who had purchased the same from Amina Bibi through her Power of Attorney holder Debendranath Panigrahi in the year 1984 under a registered sale deed. It is stated that Kumari Devi Sahu, being delivered with the possession of the suit land by Amina Bibi through her Power of Attorney holder, was in possession and on delivery of possession of the suit land by Kumari Devi to the Plaintiff when he purchased the suit land, came to his halds. It is further stated that the Plaintiff has also purchased lands from one Bibhuti Bhusan Sahu by registered sale deed dated 08.10.2010 and thus has been enjoying the suit land as its owner as like his vendors as before. 4. The Defendants, in their written statement, while traversing the plaint averments, have denied the claim of the Plaintiff to have perfected the right, title and interest over the suit land by virtue of adverse possession and their right to possess the same as such. RSA No.272 of 2022 Page 5 of 9 {{ 6 }} 5. On the above rival pleadings, the Trial Court, having framed as many as four issues, sat over the decide issue no.III, which concerns with the claim of the Plaintiffs as regards their acquisition of right, title, interest and possession over the suit land by virtue of adverse possession. On analysis of the evidence and their evaluation; testing those in the touch stone of the pleadings, the Trial Court has answered the said issue against the Plaintiffs, which has practically to the dismissal of the suit. The Plaintiffs, having carried the First Appeal under section 96 of the Code, have failed in their attempt to get that finding reversed in obtaining the decree in the suit, as prayed for. Hence, the present Second Appeal is at the instance of the Plaintiffs, who have been unsuccessful in both the Courts below. 6. The Appeal has been admitted to answer the following substantial question of law:- “Whether the Courts below are right in holding that the Plaintiffs have their case of acquisition of right, title, interest and possession over the suit land by way of adverse possession?” to establish failed 7. Mr.S.K.Pradhan, learned counsel for the Appellants (Plaintiffs) submitted that as admittedly the suit land was in possession of the vendors of the original Plaintiff and before that, with the vendor’s vendor of the original Plaintiff, that having so RSA No.272 of 2022 Page 6 of 9 {{ 7 }} continued in the hands of the Plaintiff, the Courts below ought to have applied the principle of tacking of possession and answered the issue in favour of the Plaintiff. He further submitted that with the overwhelming evidence on record, the possession of the suit land by the original Plaintiff and prior to that, by his vendor and before that by his vendor’s vendor stretching over a long period, when such provision was open, peaceful and continuous without any interruption from any quarters holding the title and denying the title of the State; the Courts below are not at all right in answering that crucial issue in the negative against the Plaintiffs. 8. Mr. G.N. Rout, learned Additional Standing Counsel submitted all in favour of the findings returned by the Courts below. He submitted that on the basis of the evidence in support of the Plaintiffs case as laid in the plaint; the Courts below have rightly dismissed the Appeal. 9. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the rival pleadings and the evidence both oral and documentary let in by the parties, as placed. 10. The Plaintiff, in Paragraph-2 of the plaint, has stated that the proposal for settlement of land was sent to the S.D.O., Berhampur vide letter of the Tahasildar dated 10.02.1984 and the Collector, in turn, made the recommendation to the R.D.C., Page 7 of 9 RSA No.272 of 2022 {{ 8 }} requesting him to examine the matter and move the Government for further orders of settlement of the land in favour of Amina Bibi and others. Having said this, it has been stated that the land was sold by Amina Bibi to one Kumari Devi Sahu through her Power of Attorney holder and it was under a registered sale deed, which was followed by delivery of possession. It is also stated that Kamari Devi Sahu, being in need of money, sold the land to the Plaintiff by registered sale deed dated 16.04.1994 and delivered the possession to her. The Plaintiff also claims to have purchased a piece of land from Bibhuti Bhuysan Sahu by registered sale deed 08.10.2010, who was in possession of the land from 20.07.1984, having purchased the same from Amin. 11. With the above facts pleaded in the plaint that by the time, Amina Bibi started selling the land, the position stood accepted that the State was the owner of the suit land and Amina Bibi was waiting for getting an order of settlement of the same in her favour. So, the title over the said land in possession of Amina Bibi was resting with the State and Amina Bibi was expecting an order of settlement of those so as to be clothed with ownership over the same. In that simple view of the matter, even if for a moment, it is accepted that Amina Bibi had sold those lands, the so-called purchasers were not conferred with any right, title and interest over the suit land, which Amina Bibi even had not got by then. RSA No.272 of 2022 Page 8 of 9 {{ 9 }} The possession of Amina Bibi, being at the mercy and pleasure of the original owner-State; the Plaintiff coming to possess through Amina Bibi would simply stand put him in that status as that of Amina Bibi and can bring no promotion for him. In that view of the matte, accepting the plaint case in entirety, the foundational facts for establishment of a claim by acquisition of title by way of adverse possession are found to be wholly lacking therein and so also in evidence. Accordingly, the substantial question of law is answered against the Plaintiffs. 12. Resultantly, the Appeal stands dismissed. There shall be no order as to cost. (D. Dash), Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASSISTANT REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 11-Jan-2024 12:37:58 RSA No.272 of 2022 Page 9 of 9