Somra Oraon Vs Chandrashekhar Oraon Alias Chandra Sekhar Oraon

¶1

IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.246 of 2023

¶2

------

¶3

(Against the judgment dated 10.08.2023 passed by learned District Judge-I, Lohardaga in Civil Appeal No.03 of 2016)

¶4

Somra Oraon, s/o Late Budhu Oraon, aged about 60 years, r/o village Jamhare, PO Charhu, PS Kisko, District Lohardaga

¶5

.... .... …. Plaintiff/Appellant/Plaintiff

¶6

Versus

¶7

Chandra Sekhar Oraon,

¶8

Basu Oraon,

¶9

Satprakash Oraon

¶10

Mani Oraon

¶11

All 1 to 4 s/o Late Bhanga Oraon, r/o village Jamhare, PO Charhu, PS Kisko, District Lohardaga

¶12

The Secretary Bhudan Yagya Committee having its office at Indrapuri, Ranchi, PO Hesal, PS Sukhdeonagar, District- Ranchi

¶13

The Deputy Commissioner, Lohardaga, PO, PS & District .... Lohardaga .... …. Defendants/Respondents/Defendants

¶14

For the Appellant : Mr. Yogesh Modi, Advocate Ms. Ruchi Mukti, Advocate Ms. Omiya Anusha, Advocate

¶15

P R E S E N T

¶16

HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

¶17

By the Court :- Heard the learned counsel for the appellant.

¶18

This Second Appeal filed under section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment and decree of affirmance dated 10.08.2023 passed by learned District Judge-I, Lohardaga in Civil Appeal No.03 of 2016 whereby and where under the learned first

¶19

¶20

S.A. No.246 of 2023

¶21

appellate court being the District Judge-I, Lohardaga has dismissed the appeal and upheld the judgment and decree passed by the learned trial court being Additional Munsif, Lohardaga in Title Suit No.41 of 2009 and dismissed the appeal.

¶22

The brief facts of the case is that the plaintiff filed Title Suit No.41 of 2009 in the court of Munsif, Lohardaga with a prayer for a decree for declaration of right, title, interest and possession over the suit schedule A property with occupancy and Kaimi right in favour of the plaintiff, cost of the suit and other reliefs.

¶23

The case of the plaintiff in brief is that the plaintiff is a permanent settler of the village Jamhare. The suit property before the ancestors of the plaintiff coming in possession thereof was the Parti land. In the year, 1947 the father of the plaintiff entered into the suit property and he got a house built over the suit property. The plaintiff has been residing in the residential house with family members after the death of his father Budhu Oraon, thus, the plaintiff claims that he has inherited the suit property by way of succession and inheritance. It is the further case of the plaintiff that he has acquired title by way of adverse possession within the knowledge of all concerned since the lifetime of this father. It is also the case of the plaintiff that his defective title has been confirmed by way of adverse possession over the suit property and occupancy right occurred in favour of the plaintiff, since the lifetime of his father. The name of the father of the plaintiff was published in the final publication of Hal Survey Khatiyan in or about the year 1989 and the residential house was entered as ‘Makan Mein Sahan’ in the entry of Hal

¶24

¶25

S.A. No.246 of 2023

¶26

Survey Khatiyan. In the month of September, 2009, the defendant claimed title over the suit property, hence, the plaintiff filed the suit.

¶27

The defendant No.1 was debarred from filing the written-statement.

¶28

The defendant No.3 of the suit who was the respondent No.2 before the learned first appellate court, in his written-statement challenged the maintainability of the suit on various technical grounds. The defendant further pleaded that the predecessors-in-interest of the plaintiff were permanent residents of village Ugra. The plaintiff’s father Budhu Oraon had no residence at village Jamhare nor had any residence in the said village. The defendant No.3 gave permissive possession to the father of the plaintiff but during the course of present survey operation, the plaintiff’s father illegally and without any right or title in the suit property, got his name entered and recorded as Raiyat; with the connivance of the survey authority. This defendant denied all the averments of the plaintiff made in the plaint. This defendant further pleaded that the suit land was a Gair Majaruwa Land and the land was donated by the then landlord to Bihar Bhudan Yagya Samitee; which came in possession over the same. The father of the plaintiff used to live in the house of his father-in-law namely Deothan Oraon in village Jamhare. The father of the plaintiff was ousted from the house of Deothan Oraon and upon the request made by the father of the plaintiff, this defendant permitted the father of the plaintiff to remain in a portion of the house of the defendant. The defendant filed Title Suit No.11 of 2010 against the plaintiff which was pending. This defendant acquired the suit house through settlement on the Bihar Bhudan Yagya Samitee and paying rent with respect thereto. The permissive possession of the plaintiff can never become adverse nor confer any title. The

¶29

¶30

S.A. No.246 of 2023

¶31

defendant further pleaded that the plaintiff is trying to grab the land of the defendant on the basis of the entry made in the revenue records.

¶32

On the basis of the rival pleadings of the parties, the learned trial court settled the following only one issue:-

¶33

(i) Whether the plaintiff is entitled to relief as claimed in the suit?

¶34

The learned trial court considered the evidence in the record and considering the fact that the entry in the revenue records cannot confer title on the person whose name appears in the revenue record; came to the conclusion that the plaintiff failed to prove his title and possession over the suit land and dismissed the suit.

¶35

Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiff preferred Civil Appeal No.03 of 2016 in the court of Principal District Judge, Lohardaga which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment as already indicated above.

¶36

The learned first appellate court after considering the materials available in the record and submissions made before it, formulated the following two points for determination:-

¶37

(I) Whether plaintiff acquired valid right, title, interest over the suit property by way of adverse possession?

¶38

(II) Whether there is any defect in judgment and decree in the Trial Court?

¶39

The learned first appellate court made independent appreciation of the evidence in the record and considered that though the plaintiff claims title by way of adverse possession, yet the plaintiff failed to establish the ingredients of

¶40

¶41

S.A. No.246 of 2023

¶42

adverse possession as has been laid down by the Hon’ble Supreme Court of India in the case of Nand Ram (Dead) through Legal Representatives & Others vs. Jagdish Prasad (Dead) through Legal Representatives reported in (2020) 9 SCC 393; as the plaintiff failed to plead and prove as to who was the true owner of the suit land. The plaintiff did not issue any notice under Section 80 of the C.P.C. to the Government. The learned first appellate court also considered the observations made by the Hon’ble Supreme Court of India in the case of R. Hanumaiah & Another vs. Secretary to the Government of Karnataka, Revenue Department & Others reported in (2010) 5 SCC 203 wherein in para-20 of which it was observed by the Hon’ble Supreme Court of India that many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. It was further observed by the Hon’ble Supreme Court of India therein that whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. The Hon’ble Supreme Court of India further observed in the said judgment that in such suits, courts cannot, ignore the presumptions available in favour of the government, and by such ignorance not to grant declaratory or injunctive decrees against the government by relying upon the principles that plaint averments which are not denied or traversed are deemed to have been

¶43

¶44

S.A. No.246 of 2023

¶45

accepted or admitted and the courts in such cases should find out whether the plaintiffs in such cases is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. It was further observed that in order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government.

¶46

The learned first appellate court further considered the judgment of the Hon’ble Supreme Court of India in the case of Saroop Singh vs. Banto & Others reported in (2005) 8 SCC 330 wherein it was observed in paragraph-29 of the said judgment that in terms of Article 65 of the Limitation Act, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date of defendant’s possession becomes adverse for which animus possidendi is one of the ingredients of adverse possession.

¶47

The learned first appellate court further considered the judgment of the Hon’ble Supreme Court of India in the case of T. Anjanappa & Others vs. Somalingappa & Another reported in (2006) 7 SCC 570 in para-20 of which, it was observed that it is a settled principle of law that mere possession however long does not necessarily means that it is adverse to the true owner. The learned first appellate court also considered that it is the admitted case of the plaintiff, that rent has not been remitted to the Government in respect of the

¶48

¶49

S.A. No.246 of 2023

¶50

suit land. No rent receipt could be produced by the plaintiff. The plaintiff has failed to establish his continuous uninterrupted physical possession over the suit land to the knowledge of the State Government for the requisite period of thirty years or more.

¶51

The learned first appellate court also considered that the entries made in the revenue records and right during the survey operation do not create any conclusive proof of title in the name of the person whose name appears in the revenue record and the presumption of the entries is only in respect of the possession though even such presumption is rebuttable and as the plaintiff has failed to prove his title and right over the suit land by way of adverse possession, the learned District Judge-I, Lohardaga dismissed the appeal and upheld the judgment and decree.

¶52

Learned counsel for the appellant relies upon the judgment of a coordinate Bench of this Court in the case of Dwarika Sonar vs. Most. Bilguli reported in 2003 (2) JLJR 708 and submits that in the said case it was observed by the co-ordinate Bench that Section 84 (3) of the Chotanagpur Tenancy Act provides that if Record of Rights is finally published, it shall be conclusive evidence that the record has been duly made according to law.

¶53

It is then submitted that as the plaintiff has filed the Record of Rights prepared under Section 84 of the Chota Nagpur Tenancy Act in favour of his father, both the courts below ought to have accepted the same, as the document establishing the title of the plaintiff over the suit land and having not done so, both the courts below have committed a grave illegality.

¶54

Learned counsel for the appellant next relies upon the judgment of the co-ordinate Bench of this Court in the case of Joseph Munda vs. Most. Fudi &

¶55

¶56

S.A. No.246 of 2023

¶57

Others reported in [2009 (2) J C R 247 (Jhr)] wherein the co-ordinate Bench observed that the status of a person duly entered in the finally published Record of Rights cannot be altered after 58 years by filing a suit and further his right cannot be taken away by applying the custom that only male descendants will inherit the land left by their ancestors.

¶58

Learned counsel for the appellant further submits that both the courts below failed to appreciate the evidence in their right perspective. Hence, it is submitted that the finding of facts arrived at by both the courts below being perverse, the same be set aside and the suit of the plaintiff be decreed after formulating appropriate substantial question of law.

¶59

Having heard the submission of the learned counsel for the appellant made at the Bar and after carefully going through the materials available in the record, so far as the judgments relied upon by the learned counsel for the appellant in the case of Dwarika Sonar vs. Most. Bilguli (supra) and Joseph Munda vs. Most. Fudi & Others (supra) are concerned, they are the settled principles of law. There is no dispute regarding the same but it is also a settled principle of law that entry in the revenue records are made only for fiscal purposes and such entries cannot confer title upon the persons whose name appears in such revenue records. It is pertinent to mention here that the undisputed fact remains that the plaintiff or his father never paid any land revenue to the Government so, obviously no land revenue receipt could be produced.

¶60

It is a settled principle of law that adverse possession requires all the three classic requirements to co-exist at the same time, namely, adequate in continuity, adequate in publicity and adverse to a competitor, in denial of title

¶61

¶62

S.A. No.246 of 2023

¶63

and his knowledge moreover animus possidendi under hostile colour of title is also required as has been observed by the Hon’ble Supreme Court of India in the case of Ravinder Kaur Grewal & Others vs. Manjit Kaur & Others reported in (2019) 8 SCC 729 paragraph-60 of which reads as under:-

¶64

“60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.” (Emphasis supplied)

¶65

It is also a settled principle of law that a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued and (e) his possession was open and undisturbed; as has been held by the Hon’ble Supreme Court of India in the case of Karnataka Board of Wakf vs. Government of India & Others reported in (2004) 10 SCC 779 inter alia observed as under in para 11:-

¶66

“11. Xxxxx Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law.

¶67

¶68

S.A. No.246 of 2023

¶69

Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.”

¶70

Now, coming to the facts of the case; there is absolutely no pleading or proof put forth by the plaintiff as to on what date the father of the plaintiff came in possession nor the other essential ingredients of adverse possession could be established by the plaintiff as has rightly been observed by the learned first appellate court.

¶71

Since, the plaintiff failed to establish his title, his suit has rightly been dismissed by the trial and the said judgment has been upheld by the learned first appellate court.

¶72

Under such circumstances, this Court is of the considered view that there is absolutely no substantial question of law involved in this Second Appeal.

¶73