Allowed

Tahasildar v. L.v.Rao

Orissa HC13 Sept 2017SA/72/1990

Case brief

AI extract

What is this about?

In this defendants' appeal concerning title and adverse possession, the High Court held that the lower appellate court erred in allowing the suit. The Court clarified that a licensee's possession was not adverse, and reliance on the dropped encroachment proceeding was misplaced, thereby dismissing the appeal.

What did the court decide?

The plaintiff's suit to declare title and specific reliefs must fail; appeal allowed; no order as to costs.

Tahasildar Vs L.v.Rao — Orissa HC (2017) — LawSathi Research

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HIGH COURT OF ORISSA: CUTTACK

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S.A.No.72 of 1990

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From a judgment and decree dated 6.11.1989 and 29.11.1989 respectively passed by Shri S.P.Acharya, learned 2^nd Additional District Judge, Berhampur in Title Appeal No.56/88(T.A.No.32/86 GDC) reversing the judgment and decree dated 28.2.1986 and 7.3.1986 passed by the learned Munsif in T.S.No.169 of 1984.

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Tahasildar, Berhampur and others…. Appellants Versus L.Venkanteswar Rao …. Respondent For Appellants -- Mr.R.P.Mohapatra, A.G.A. For Respondent -- None

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J U D G M E N T

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PRESENT:

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THE HONOURABLE DR. JUSTICE A.K.RATH Date of Hearing & Judgment:13.9.2017

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Dr.A.K.RATH, J. This is a defendants’ appeal against reversing judgment.

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The respondent as plaintiff instituted T.S.No.169 of 1984 in the court of the learned Munsif, Berhampur for declaration of title and certain other ancillary reliefs impleading the appellants as defendants. The case of the plaintiff is that the suit schedule

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land had been allotted to his father on 17.12.1946 under Grow More Food Scheme by the Tahasildar, Berhampur, defendant no.1. His father was in possession of the said land. He died in the year 1952. After him, his mother remained in possession of the suit land. While the matter stood thus, defendant no.1 initiated L.E.C.No.102 of 1972 under the Orissa Prevention of Land Encroachment Act (in short “the O.P.L.E. Act”) against his mother. The defendant no.1 dropped the proceeding holding, inter alia, that the mother of the plaintiff was in possession of the suit land for more than thirty years; thus acquired title by way of adverse possession. The defendant no.1 directed to transfer the lease section on 6.5.1978. Thereafter his mother filed Mutation Case No.5798 of 1978 for mutation of the land, but no order was passed. While the matter stood thus, his mother died in the year 1980. Thereafter, he is in cultivating possession of the same. With this factual scenario, he instituted the suit seeking the relief mentioned supra.

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The defendants filed written statement denying the assertions made in the plaint. The case of the defendants is that the father of the plaintiff was permitted to cultivate Ac.1.61 dec. of land appertaining to Survey No.771/1 of village Jagdalpur temporarily for a period of three years from fasli 1356 under Grow More Food Campaign. He had no authority to possess the land beyond the period of three years. The R.I. report reveals that he had not cultivated the land beyond the period for which he was permitted to cultivate under the Grow More Food Scheme. It is stated that mother of the plaintiff was in illegal possession of the land in 1961 for which L.E.C.No.182 of 1972 was initiated against

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her. She was not in possession for more than thirty years. She was asked to show cause. Possession of the land by the father of the plaintiff from 1946-47 to 1948-49 was permissive. The same was interrupted on 18.1.1962. No final order was passed in encroachment case. The plaintiff has no right, title and interest over the suit land. The plaintiff is not in possession of the land.

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Steaming on the pleadings of the parties, the learned trial court struck five issues. Both parties led evidence, oral and documentary, to substantiate their case. On a threadbare analysis of the evidence on record and pleadings, the learned trial court came to hold that the plaintiff has not perfected title by way of adverse possession. Held so, it dismissed the suit. The plaintiff appealed before the learned District Judge, Berhampur, which was subsequently transferred to the court of the learned 2^nd Additional District Judge, Berhampur and renumbered as Title Appeal No.56/88 (T.A.No.32/86 GDC). The learned appellate court came to hold that Section 8(A) of the O.P.L.E. Act is of no assistance to the defendants. The Tahasildar dropped the proceedings stating that the mother of the plaintiff acquired title by way of adverse possession. Rent was collected from the mother of the plaintiff. The plaintiff is in possession of the suit land for more than thirty years continuously, openly, without interruption and to the knowledge of all concerned and, as such, perfected title by way of adverse possession. Held so, it allowed the appeal.

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The appeal was admitted on the following substantial questions of law enumerated in ground nos.1 (a) and (c) of the appeal memo. The same are:-

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“(a) Whether in view of the pleadings of the plaintiff that his father had been inducted as a tenant by the Tahasildar under Grow More Food Scheme some times in the year 1946 and the plaintiff thereafter are continuing in the possession, the continuance of possession even assumed to be correct, the possession being permissible and the Title of the Govt. having been admitted, whether the question of adverse possession would over arise.

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(c) Whether in view of the fact that the State Govt. is the owner of the suit scheduled property, the present suit is maintainable, the plaintiff having impleded on the Tahasildar, S.D.O. and the Collector individually as parties.”

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Heard Mr.R.P.Mohapatra, learned A.G.A. for the appellants. None appears for the respondents.

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Mr.Mohapatra, learned A.G.A. submits that father of the plaintiff was a licencee. The land was allotted to the father of the plaintiff under Grow More Food Scheme for a period of three years. The licence was not renewed. After the death of his father, mother of the plaintiff was in unauthorized occupation of the suit land. A proceeding under the O.P.L.E. Act was initiated against her. The Tahasildar dropped the proceeding. The land was not settled by the competent authority in favour of the mother of the plaintiff. Drawing attention of this Court to Section 8(A) of the O.P.L.E. Act, he further submits that where in the course of any proceeding instituted under Sections 4, 6, 7 or 8 against any person unauthorisedly occupying any land it is proved by such person that he has been in actual, continuous and undisputed occupation of the land for more than thirty years by the date of institution of the proceeding, the Tahasildar shall refer the case to

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the Sub-divisional Officer. On receipt of reference under Subsec.(1), the S.D.O. shall give the department of the State Government to which the land belongs, an opportunity to show cause against the settlement of the land and may make such further enquiry as he deems necessary. He further submits that the plaintiff was not in possession of the land for more than thirty years. The learned trial court, on a threadbare analysis of the evidence on record and pleading, negatived the plea of the plaintiff, but the same was up set by the learned appellate court without any valid and cogent reasons.

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Section 8(A) of the Orissa Prevention of Land Encroachment Act, 1972 is the hub of the issue. The same is quoted hereunder:-

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“8-A. Settlement of land in cases of encroachment for more than thirty years – (1) Where in the course of any proceeding instituted under Sections 4, 6, 7 or 8 against any person unauthorisedly occupying any land it is proved by such person that he has been in actual, continuous and undisputed occupation of the land for more than thir years by the date of institution of the proceeding, the Tahasildar shall refer the case to the Sub-divisional Officer.

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(2) On receipt of a reference under Sub-sec. (1) the Sub-divisional Officer shall give the Department of the State Government (other than the Revenue Department) to which the land belongs, an opportunity to show cause against the settlement of the land and may make such further enquiry as he deems necessary.

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(3) If after making such enquiry the Subdivisional Officer is satisfied that such person has been in such occupation of the land as aforesaid, he may be

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order, settle the land with him and every such settlement shall be subject to such conditions, regarding assessment and payment of rent (including arrears of rent) as may be prescribed by rules made under this Act.”

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On a bare perusal of the said section, it is evident that where in the course of any proceeding instituted under Sections 4, 6, 7 or 8 against any person unauthorisedly occupying any land it is proved by such person that he has been in actual, continuous and undisputed occupation of the land for more than thirty years by the date of institution of the proceeding, the Tahasildar shall refer the case to the Sub-divisional Officer. On receipt of a reference under Sub-sec. (1), the Sub-divisional Officer shall give notice to the concerned department to which the land belongs and offer to show cause against the settlement of the land. Thereafter he may make further enquiry as he deems fit. After making inquiry, if he is satisfied that the person has been in such occupation of the land, he may settle the land with him subject to such conditions regarding assessment and payment of rent including arrears of rent as may be prescribed by rules made under the Act. The proceeding initiated by the Tahasildar under Section 7 of the O.P.L.E. Act was dropped. No order was passed by the authority settling the land in favour of the mother of the plaintiff. Thus, reliance placed on the said order, vide Ext.6, is totally misplaced.

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Adverse possession is a mixed question of fact and law. In the celebrated judgment, the Privy Council, in the Secretary of State Vrs. Debendra Lal Khan, A.I.R. 1934 Privy Council 23 , held that the classical requirement of adverse

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possession is that the possession should be nec ve nec clam nec precario . Their Lordships quoted with approval the decision in the case of Radhamoni Debi Vrs. Collector of Khulna (1), 140 of 27 I.A. at page 140 that “the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor”.

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In Karnataka Board of Wakf vs. Govt. of India and others, (2004) 10 SCC 779, the apex Court observed as under :-

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"In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.

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The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. 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

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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.” (emphasis laid)

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The father of the plaintiff was a licencee for three years. The licence was not renewed. Since the mother of the plaintiff was in unauthorized possession, proceeding under the O.P.L.E. Act was initiated. On untenable and unsupportable grounds, the learned appellate court up set the findings of the learned trial court. The judgment of the learned appellate court is perverse. The substantial questions of law are answered accordingly.

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Resultantly, the plaintiff’s suit must fail. The appeal is allowed. 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. The 13^th September, 2017/CRB

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Tahasildar v. L.v.Rao

Case brief

What is this about?

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Tahasildar v. L.v.Rao

Case brief

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