Dismissed

Narendra v. State

Orissa HC8 Sept 2017SA/211/1997

Case brief

AI extract

What is this about?

In this second appeal, the Orissa High Court dismissed the appellant's challenge to the dismissal of a civil suit for declaration of title and permanent injunction. Despite the father's reliance on adverse possession and a relevant prior High Court judgment, the court upheld the trial court's finding that the plaintiff failed to prove title. Consequently, the appeal was dismissed sans merit.

What did the court decide?

The appeal was dismissed in its original terms. The judgment and decree of the learned trial court were affirmed.

Narendra Vs State — Property and Title | Orissa HC (2017)

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HIGH COURT OF ORISSA: CUTTACK

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S.A. No.211 of 1997

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From the judgment and decree dated 26.4.1997 and 8.5.1997 respectively passed by Sri D.K. Sahu, learned District Judge, Phulbani in T.A. No.13 of 1993 confirming the judgment and decree dated 25.2.1993 and 6.3.1993 respectively passed by Sri M.R. Mohanty, learned Additional Sub-Judge, Phulbani in T.S. No.21 of 1987.

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Narendra Mohanty ………..……… Appellant ---versus— State of Orissa and others ……….….…… Respondents

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For Appellant : Mr. Sidhartha Das, Advocate For Respondents : Miss Samapika Mishra, Addl. Standing Counsel

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J U D G M E N T

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P R E S E N T:

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THE HON’BLE DR. JUSTICE A.K. RATH

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---------------------------------------------------------------------------Date of Hearing : 08.09.2017 │ Date of Judgment: 08.09.2017

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Dr. A.K. Rath, J. Plaintiff is the appellant against a confirming judgment in a suit for declaration of title, confirmation of possession and permanent injunction.

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02. The case of the plaintiff is that his uncle Sartika Mohanty was in possession of the suit land since 1940-41. After his death, he is in possession of the same. In the year 1970, he raised construction over the same. On 18.3.72, the Tahasildar, Kandhamal initiated Encroachment Case No.22/72. Order of eviction was

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passed. He assailed the order of eviction before the appropriate authorities, but to no avail. He had acquired title by way of adverse possession. The encroachment proceeding was illegal since the Tahasildar had no jurisdiction to initiate such a proceeding.

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03. The defendants filed a joint written statement challenged the maintainability of the suit. It is pleaded that the plaintiff was an encroacher. The kissam of the land is Rakhita Anabadi.

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04. Stemming on the pleadings of the parties, learned trial court struck five issues. Both the parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that the plaintiff had failed to prove his title by way of adverse possession. The suit is not maintainable in view of the embargo under Sec.16 of the Orissa Prevention of Land Encroachment Act (hereinafter referred as “OPLE Act”). Held so, it dismissed the suit. The unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned District Judge, Phulbani in T.A. No.13 of 1993, which was eventually dismissed.

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05. The second appeal was admitted on the following substantial question of law.

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“Whether a suit for declaration of right, title and interest is maintainable, even if there is an order of eviction by the revenue court ?”

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06. Mr. Sidhartha Mishra, learned counsel for the appellant argues with vehemence that in spite of the bar contained under Sec.16 of the OPLE Act, the suit is maintainable. He further submits that the plaintiff was in possession of the suit land peacefully, continuously and to the hostile animus of the defendants for more

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than statutory period and as such perfected title by way of adverse possession. He places reliance on the decision of this Court in the case of State of Orissa vs. Bhanu Mali (Dead) Nurpa Bewa and others, AIR 1996 ORISSA 199.

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07. Per contra, Miss Samapika Mishra, learned Additional Standing Counsel for the respondents submits that adverse possession is a mixed question of fact and law. Both the courts below concurrently held that the plaintiff had failed to prove his title over the land. Learned appellate court came to hold that the suit is maintainable, but the plaintiff was not in possession over the suit land.

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08. In Bhanu Mali (Dead) Nurpa Bewa (supra), a question arose that whether the decision of the Revenue Officer in the proceeding under the Orissa Prevention of Land Encroachment Act will operate as res judicata in the subsequent suit filed by the plaintiff for declaration of title and recovery of possession. This Court held that the decision of the Revenue Officer in the proceeding under the Orissa Prevention of Land Encroachment Act can neither operate as res judicata nor Sec.16 thereof can stand as a bar relating to the question of title in the subsequent civil suit by the plaintiffs.

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09. Notwithstanding the bar contained in Sec.16 of the OPLE Act, the civil court has jurisdiction to adjudicate the complicated question of title.

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10. On an anatomy of the pleadings and evidence on record, learned trial court negatived the plea of adverse possession. There is no perversity or illegality in the finding of the court below.

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11. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.

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………………………………. Dr. A.K. Rath,J.

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Orissa High Court, Cuttack

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The 8^th September, 2017/Basanta

Narendra v. State

Case brief

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Narendra v. State

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