The High Court of Orissa, Cuttack, dismissed a second appeal arising from a suit for declaration of title. The appellant contested an eviction order and claimed adverse possession. The court found the lower courts correct in holding that mere possession without hostile animus is insufficient against the State.
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HIGH COURT OF ORISSA: CUTTACK
RSA No.475 of 2012
From the judgment and decree dated 14.9.2009 and 21.9.2009 respectively passed by Sri R.K. Saran learned Addl. District Judge, Nuapada in RFA No.17 of 2008 confirming the judgment and decree dated 29.10.2008 and 4.11.2008 respectively passed by Sri K.K. Dash, learned Civil Judge (Senior Division), Nuapada in Civil Suit No.84 of 2003.
----------Gyan Prakash Singh …. Appellant Versus State of Orissa & another …. Respondents For Appellant … Mr. B.B. Mishra, Advocate For Respondents … Addl. Government Advocate
J U D G M E N T
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 04.11.2016 : Date of judgment: 04.11.2016
Dr. A.K.Rath, J Plaintiff is the appellant against a confirming judgment in a suit for declaration of title.
2. The case of the plaintiff is that the suit land was recorded in the name of the State of Orissa. His grand father Asbal Singh constructed a dwelling house over the same in June, 1948. He resided in the house with his family members till his death. Thereafter, his father remained in possession of the house till 1990. He acquired title by way of adverse possession. While the matter stood thus, the Tahasidar, Nuapada initiated Encroachment Proceeding No.2137 of 2002 for eviction from the suit land and passed the order of eviction.
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3. Pursuant to issuance of summons, defendant No.2 entered appearance and filed a written statement denying the possession of the plaintiff and his predecessor-in-interest since 1948. Acquisition of title by the plaintiff over the suit land by way of adverse possession has been denied. The specific case of the defendant no.2 is that the plaintiff is a rank trespasser. He has no semblance of title over the suit land.
4. On the inter se pleadings of the parties, learned trial court framed as many as five issues. The plaintiff had examined three witnesses and on his behalf six documents had been exhibited. The defendants had examined one witness and on their behalf three documents had been exhibited. The learned trial court came to hold that the plaintiff has failed to prove that he has perfected right, title and interest over the suit land. Encroachment case initiated under the OPLE Act for eviction of the plaintiff was proper and justified. The suit is barred by limitation and the plaintiff is not entitled to any relief. Held so, learned trial court dismissed the suit. Challenging the judgment and decree, the plaintiff filed RFA No.17 of 2008 before the learned Addl. District Judge, Nuapada, which was eventually dismissed.
5. Heard Mr.Mishra, learned counsel for the appellant and the learned Addl. Government Advocate for the respondents.
6. Mr. Mishra, learned counsel for the appellant, submits that the suit land was in possession of the grand father of the plaintiff. But the learned courts below committed a manifest illegality in holding that the plaintiff is an encroacher of the Government land. The Sabik ROR clearly reflects about the possession of the plaintiff over the suit land. In the hal ROR, the note of possession of the plaintiff was not reflected in view of the Board of Revenue circular dated 13.7.1987. Learned courts below have wrongly recorded the
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finding that since no reference is made in the Hal ROR of forcible encroachment by the plaintiff or his grand father, he has failed to prove that he has perfected his right, title and interest over the suit land. He further submits that the plaintiff has perfected title by way of adverse possession.
7. Learned Addl. Government Advocate supports the judgments of the courts below.
8. Learned lower appellate court came to hold that mere possession over a statutory period is not sufficient to succeed in a plea of adverse possession unless it is accompanied by hostile animus. A person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. Burden lies on him to prove by clear and unequivocal evidence that his possession over the suit property was hostile to the State and amounted to denial of title of the State and such possession was more than 30 years by the date of filing of the suit. The plaintiff has filed the suit as an encroacher of the Government land. Mere continuous possession of more than 30 years is not suffice. To prove hostile animus against the Government, one has to come up with a very strong case and show that in spite of encroachment case he is in possession of the land more than 30 years from the date of termination of the encroachment case. Adverse possession usually used as a shield rather than a sword. The plaintiff is a rank trespasser for which the Government started encroachment case against him. Held so, learned lower appellate court dismissed the appeal.
9. Adverse possession is a mixed question of fact and law. On an anatomy of the pleadings and the evidence on record, learned lower appellate court came to hold the plaintiff is a rank trespasser
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for which the Government started encroachment case against him. The findings of the lower appellate court cannot be said to be perverse.
10. The second appeal does not involve any substantial question of law. Accordingly, the same is dismissed.
Orissa High Court, Cuttack. The 4th November, 2016/Pradeep
2 issues framed by the court
Whether the plaintiff can succeed in a suit for declaration of title if he relied solely on adverse possession without proving hostile animus.
Whether the findings of the lower appellate court that the plaintiff is a rank trespasser are perverse.
Gyan Prakash Singh
State of Orissa
A.K. Rath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
