Dismissed

Gandharba v. State

Orissa HC6 Jul 2018SA/136/1986

Case brief

AI extract

What is this about?

The High Court of Orissa dismissed the appeal of the plaintiffs who claimed title by adverse possession. The court held that the tribunals could not decide a question regarding the acquisition of raiyati rights under the Hindol State Tenancy Act because it was not specifically pleaded or raised as an issue during the trial and appeal stages. Consequently, the appeal was found to be sans merit and

What did the court decide?

The appeal was dismissed. No costs.

Gandharba Vs State — Property and Title | Orissa HC (2018)

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HIGH COURT OF ORISSA: CUTTACK

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S.A.No.136 of 1986

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From the judgment and decree dated 17.2.1986 and 25.2.1986 respectively passed by Shri A.K.Senapati, learned Additional Subordinate Judge, Dhenkanal in T.A.No.6/14 of 1982/1984 confirming the judgment and decree dated 25.1.1982 and 2.2.1982 passed by the learned Additional Munsif, Hindol in T.S.No.12 of 1975.

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Gandharba Sahu (dead) through his L.Rs and another …. Appellants

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Versus

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State of Orissa …. Respondent For Appellants -- Mr.Gautam Mishra, Mr.Anupam Dash Advocates For Respondent -- Mr.R.P.Mohapatra, Addl.Govt.Advocate

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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 :28.06.2018 & Date of Judgment:06.07.2018

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Dr.A.K.RATH, J. This appeal is by the plaintiffs. The suit was for declaration of title and the encroachment cases and certificate cases are not maintainable.

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The case of the plaintiffs is that they are the grand sons of Chintamani Gajraj Singh. In the year 1913, Chintamani

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Gajraj Singh reclaimed the suit schedule land and made it for cultivation. He was in possession of the suit land. After him, his sons and thereafter the plaintiffs are in possession of the same. In 1912 settlement, the same had been recorded in the name of Gajraj Singh. The actual area was Ac.4.56 dec., but inadvertently the same had been shown as Ac.2.26 dec. In 1969 settlement, an area of Ac.2.21 dec. out of total Ac.4.56 dec. had been recorded in the name of the plaintiffs. The balance land had been recorded in the name of the Government. Since encroachment cases were initiated against them, they instituted the suit seeking the reliefs mentioned supra.

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The defendant filed written statement denying the assertions made in the plaint. The defendant admitted the title of the plaintiffs over ‘A’ schedule land. With respect to the other schedule lands, it was pleaded that those lands belong to the State. Neither the plaintiffs nor their forefather were in possession of the same.

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Stemming on the pleadings of the parties, learned trial court framed seven issues. Parties led evidence. Learned trial court dismissed the suit holding, inter alia, that Chintamani Gajraj Singh was not in possession of the suit schedule land. The plaintiffs were in unauthorized occupation of the suit land from 1960. They were not in possession of the suit land for more than thirty years and, as such had not perfected title by way of adverse possession. Unsuccessful plaintiffs filed

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appeal before the learned District Judge, Dhenkanal, which was subsequently transferred to the court of the learned Additional Subordinate Judge, Dhenkanal and renumbered as Title Appeal No.6/14 of 1982/1984. The appeal was eventually dismissed. It is apt to state here that during pendency of the appeal, appellant no.1 died, whereafter his legal heirs had been substituted.

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This appeal was admitted on the substantial questions of law enumerated in ground nos. A and B of the appeal memo. The same are :

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“A) Whether the courts below should have held that the plaintiffs had acquired Raiyati right over the disputed land by virtue of section 41 of the Hindol State Tenancy Act ?

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B) Whether the courts below committed an illegality in holding that the right of the plaintiffs was lost by the Act of the State when the Ex. State of Hindol merged with the State of Orissa ?”

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Heard Mr.Gautam Mishra, learned Advocate along with Mr.Anupam Dash, learned Advocate for the appellants and Mr.R.P.Mohapatra, learned Additional Government Advocate for the respondent.

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Learned Advocate for the appellants submitted that Chintamani Gajraj Singh, grandfather of the plaintiffs, reclaimed the suit land and made it fit for cultivation. He was in possession of the land till his death. After him, his sons and

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thereafter the plaintiffs are in peaceful possession of the same. The plaintiffs had acquired raiyati right over the suit land by virtue of Section 41 of Hindol State Tenancy Act. The courts below committed a manifest illegality in holding that right of the plaintiffs was lost when the Ex-State of Hindol merged with the State of Orissa. Though the plea regarding the applicability of Hindol State Tenancy Act was not specifically pleaded in the plaint, but the point was urged in the trial court as well as the lower appellate court. Hence, the lack of specific pleading cannot be considered as fatal. The plaintiffs are in possession of the suit land peacefully, continuously and with the hostile animus to the State for more than the statutory period and, as such perfected title by way of adverse possession. To buttress the submission, learned Advocate for the appellants placed reliance on the decisions of the apex Court in the case of Ram Sarup Gupta (dead) by L.Rs., v. Bishun Narain Inter College and others, AIR 1987 SC 1242 and Gaiv Dinshaw Irani and others v. Tehmtan Irani and others, AIR 2014 SC 2326.

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Learned Additional Government Advocate for the respondent submitted that there is no pleading with regard to acquisition of raiyati right over the suit land by virtue of Section 41 of Hindol State Tenancy Act. Both the courts below negatived the plea of the plaintiffs that they have perfected title by way of adverse possession. There is no perversity in the said findings.

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Order 6 C.P.C. deals with pleading. Order 6 Rule 1 defines pleading. Rule 2 provides that every pleading shall contain a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.

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In M/s. Ganesh Trading Co. v. Moji Ram, AIR 1978 S.C.484, the apex Court held that provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.

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Plaintiff case is that they have perfected title by way of adverse possession. Accordingly, prayer has been made for declaration that they have perfected title by way of adverse possession. There is no pleading with regard to acquisition of raiyati right by virtue of Sec.41 of Hindol State Tenancy Act. No issue was framed. Thus, it is beyond the scope of second appellate court to decide the question in absence of pleading and issue. The substantial questions of law are answered accordingly.

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The matter may be examined from another angle. The claim of title and adverse possession is mutually inconsistent. The apex Court in the case of Mohan Lal

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(deceased) through his LRs. Kachru and others Vrs. Mirza Abdul Gaffer and another, (1996) 1 SCC 639 held:

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“As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi nec clam nec precario . Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”

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13. The apex Court in the case of L.N. Aswathama and another v. P. Prakash (2009) 13 SCC 229 held :

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“To establish a claim of title by prescription, that is, adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the

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period for prescription will not commence.”

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` (Emphasis laid)

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14. The decisions cited by the learned Advocate for the appellants are distinguishable on facts.

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15. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.

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