Civil Suit No. 136 of 2006 · High Court
Case Details
HIGH COURT OF ORISSA : CUTTACK RSA NO.424 of 2023 In the matter of appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned Additional District Judge, Nayagarh in RFA No.44 of 2022 in confirming the judgment and decree passed by the learned Senior Civil Judge, Nayagarh in Civil Suit No. 136 of 2006. ……… Bhagabati Charan Pattnaik :::: Appellant. -:: VERSUS ::- State of Odisha :::: Respondent. Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- For Appellant … M/s.Abinash Routray, M. J. Bhuyan, A. Routray & P.K. Jena. Deo, (Advocates) For Respondent … G.N. Rout, Additional Standing Counsel ------
Legal Reasoning
CORAM : MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Hearing: 04.01.2024 :: Date of Judgment: 16.01.2024 --------------------------------------------------------------------------------------- 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 and decree passed by the learned Additional District Judge, Nayagarh in R.F.A. No.44 of 2022. {{ 2 }} The Appellant as the Plaintiff had filed C.S. No.136 of 2006 in the Court of the learned Senior Civil Judge, Nayagarh (as it was then). The suit was for declaration of his right, title, interest and possession over the suit land and for injunction as against the Defendant-State. 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 Trial Court. 3. Plaintiff’s case is that he is in possession of the suit land measuring Ac.0.14 dec. situated in village Nayagarh since the year 1941. It is stated that he has been staying with his family in the house constructed over there. It is further stated that he has no land either residential or cultivable and as such he is forcibly possessing the suit land. The Revenue Inspector instituted two Encroachment Cases against the Plaintiff for taking possession of the suit land. However, the Plaintiff although paid fine as per the order passed in the said Encroachment Cases, was not evicted from the suit land in those proceedings. It is stated that the Plaintiff has been paying holding tax in respect of the house standing over the suit land to the Local Body and the Tahasildar, Nayagarh in the year 1991 has admitted the possession of the Plaintiff over the suit land. The Plaintiff thus claims to be in open, peaceful and continuous possession of the suit land for quite a long period, commencing sometime in the year 1941 and he has never parted with Page 2 of 5 {{ 3 }} the possession of the said land. When on 05.06.2006, a threat came from the side of the Revenue Inspector; Nayagarh for eviction of the Plaintiff from the suit land, finding no way out, the suit came to be instituted after service of notice under section 80 of the Code. 4. The Defendant denied the case/claim of the Plaintiff as to have acquired any title over the suit land belonging to the State. It is also stated that the Plaintiff has never been in possession over the suit land since the year 1941 as claimed. It is stated that the Plaintiff is in unauthorized occupation of the suit land and, therefore, has paid the fine in the encroachment cases when was so directed. 5. The Trial Court on the above pleadings framing five issues has answered the crucial issue as to the establishment of the case/claim of the Plaintiff as regards acquisition of title over the suit land by way of adverse possession against the Plaintiff. On analysis of evidence and their evaluation, the Trial Court has found the Plaintiff to have failed to prove the ingredients required for the purpose of establishment of the case/claim of acquisition of title over the piece of land by way of adverse possession. With such finding, the suit having been dismissed, the Plaintiff being unsuccessful before the Trial Court had carried the Appeal under section 96 of the Code which too has been dismissed. Page 3 of 5 {{ 4 }} 6. The Appeal has been admitted to answer the following substantial question of law:- “Whether the Courts below are right in negating the case/claim of the Plaintiff as regards acquisition of land by way of adverse title over possession?’ the suit 7. I have heard Mr. A. Routrary, learned counsel for the Appellant and Mr. G.N. Rout, learned Additional Standing Counsel at length. 8. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. 9. The Plaintiff in the present suit seeks the relief of declaration of his right, title, interest as such the right to possess the suit land in saying that the same has been acquired by way of adverse possession. It is stated by the Plaintiff that he is in possession of the suit land from the year 1941. As per the settled position of law mere possession of the land in question howsoever long it may be does not necessarily mean that it is adverse to the true owner. Adverse possession means hostile possession which is inconsistent with the title of the rightful owner and tends to extinguish that person’s title. The person setting up adverse possession is required to prove the classical requirements such; nec vi, nec clam and nec precario. It must be pleaded and proved that the possession was open, peaceful and continuous and to the knowledge of the rightful Page 4 of 5 {{ 5 }} owner in and most importantly denial of his title and the possessor in possessing the same from the beginning till the end must not only disown the title of the true owner but must claim the title unto himself. In the case at hand, the pleadings laid in the plaint when are carefully gone through do not go to show that the Plaintiff in possessing the suit had denied the title of the Defendant, the true owner all through. In fact, the payment of fine by the Plaintiff for his unauthorized occupation of the suit land is an act on his part whereby he had admitted the title of the true owner and thereby placed himself in the position as if at the mercy of the true owner. The Plaintiff has also not led evidence in the above direction that thereafter when he started to possess adversely and if in that way has completed the period prescribed. 10. In the wake of aforesaid, without further delving into the matter the answer to the substantial question of law stands against the Plaintiff which leads to confirm the judgments and decrees passed by the Courts below. 11.
Decision
In the result, the Appeal stands dismissed. No order as to cost. Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 19-Jan-2024 18:16:14 (D. Dash), Judge. Page 5 of 5