Dismissed

Purna Ch Mishra v. State of Orissa

Orissa HC24 Jan 2019RSA/154/2003

Case brief

AI extract

What is this about?

The High Court of Orissa dismissed an appeal concerning a suit for declaration of title and confirmation of possession. The appellant claimed title based on an alleged grant and adverse possession. The court held that claims of lawful title and adverse possession are mutually inconsistent, noting the appellant failed to prove a hostile title or renounce the alleged lawful right.

What did the court decide?

The appeal was dismissed as it was deemed devoid of merit.

Purna Ch Mishra Vs State of Orissa — Property and Title | Orissa HC (2019)

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HIGH COURT OF ORISSA: CUTTACK

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R . S.A.No.154 of 2003

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From the judgment and decree dated 18.12.2002 & 2.1.2003 passed by Mr.G.R.Dubey, learned Ad hoc Additional District Judge, Sundargarh in T.A.No.9/50 of 1997 confirming the judgment and decree dated 30.6.1997 & 4.7.1997 passed by the learned Civil Judge (Sr.Division), Bonai in T.S.No.2 of 1996.

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Purna Chandra Mishra (dead) through his L.Rs …. Appellant Versus State of Orissa and others …. Respondents

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For Appellant -- Mr.Debasis Pattnaik, Mr.Prabhab Behera, Advocates. For Respondents -- Ms.Samapika Mishra, A.S.C.

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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:24.01.2019

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Dr.A.K.RATH, J. Plaintiff is the appellant against a confirming judgment

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in a suit for declaration of title, confirmation of possession and in the alternative recovery of possession, in the event he is dispossessed from the suit land during pendency of the suit and permanent injunction.

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Case of the plaintiff was that Bonai was a princely State. K.K.C.Deo Deb was the last ruler of Bonai. He had granted the suit land to the father of the plaintiff for construction of a Kali temple in the year 1952. His father was in possession of the said land and used to pay rent till 1959. Even though the princely State merged with the State of Orissa in the year 1948, the State of Orissa had not taken away the land from the ex-ruler till the matter was regularized. The ex-ruler was enjoying the privileges and the benefits before merger. During the life time, the father of the plaintiff laid foundation for the temple, planted various fruits bearing trees and utilized the land as his kitchen garden and remained in possession. After his death, the plaintiff is in possession of the suit land. During major settlement operation in the year 1975, the A.S.O. detected the encroachment of the suit land and submitted its report to the Tahasildar. The Tahasildar passed the order of eviction on 18.12.1995 in Encroachment Case No.272 of 1981. He preferred Appeal No.3 of 1995 before the Sub-Collector, Bonaigarh, which was dismissed on 16.1.1996. The father of the plaintiff was in peaceful possession of the suit land. Thereafter, the plaintiff is in possession of the suit land peacefully, continuously and with the hostile animus to the defendants and, as such perfected title by way of adverse possession.

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Defendants 2 and 3 filed written statement pleading inter alia that in the year 1952, there was no feudal chief. He had not granted any patta. Bonai was under the British Government. It was a princely State. It merged with the State of Orissa on 1.1.1948. The father of the plaintiff was in unauthorized possession, for which Encroachment Case No.272 of 1981 was initiated. Order of eviction was passed. K.K.C.Deo Deb was not the ruling chief in the year 1952. He had not granted any land for construction of Kali temple. Before

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merger of the Bonai State, the ex-ruler was the absolute owner of the State, but not thereafter. The A.S.O. made spot inquiry and visited the spot while demarcating the suit land. He submitted the report to the Tahasildar, Bonai. The case land is a gochar and objectionable. The Tahasildar in encroachment case rejected the prayer of the plaintiff for settlement of the land and passed order of eviction.

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Stemming on the pleadings of the parties, learned trial court struck seven issues. Parties led evidence, oral and documentary. Learned trial court came to hold that no document had been filed by the plaintiff to show that the ex-ruler had granted patta in respect of the suit land. The rent receipts filed by the plaintiff are of no help. There was no practice in vogue that after merger, the King had granted any land. P.Ws.1 and 2 do not have direct knowledge with regard to the grant of land. The ruling chief was not examined. In remarks column of the R.O.R., the note of possession of the father of the plaintiff has been reflected from the year 1993. The encroachment case was initiated in the year 1981. The plaintiff has not perfected title by way of adverse possession. Unsuccessful plaintiff filed appeal before the learned District Judge, Sundargarh, which was subsequently transferred to the court of the learned Ad hoc Additional District Judge, Sundargarh and registered as T.A.No.9/50 of 1997. The appeal was eventually dismissed. It is apt to state here that during pendency of the appeal, the appellant died, whereafter his legal heirs have been substituted.

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This appeal was admitted on the following substantial questions of law enumerated in ground nos.(i), (ii), (iii) and (iv) of the appeal memo. The same are:

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i) Whether the intimation of the A.S.O. to the Tahasildar made in the year 1968 can stall the period of adverse possession.

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ii) Whether the private lands of the Ex-ruler of Bonai vested in the State Government by 1952 more so when there is no notification by the State Government indicating the date of vesting ?

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iii) Whether the trial Court committed illegally in rejecting the application for examination of ex-ruler on commission on the ground of his illness which has resulted miscarriage of justice;

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iv) Whether the orders passed by the Defendants in the encroachment case is in consonance to the principle of natural justice and whether the encroachment case is of the year 1986 more so when it has been numbered as Case No.272 of 1981 ?”

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Heard Mr.Debasis Pattnaik along with Mr.Prabhab Behera, learned Advocate on behalf of Mr.D.K.Mishra, learned Advocate for the appellant and Ms.Samapika Mishra, learned Additional Standing Counsel for the respondents.

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Mr.Pattnaik, learned Advocate for the appellant submits that K.K.C.Deo Deb had granted lease to the father of the plaintiff in the year 1952 for construction of a Kali temple. The father of the plaintiff was in possession of the land. He made certain construction and fenced it. Thereafter, he is in possession of the land peacefully, continuously and with the hostile animus to the defendants and, as such, perfected title by way of adverse possession. Initiation of encroachment case is bad in law. Two applications were filed under Order 26 Rule 1 CPC to examine the ex-ruler, but learned trial court rejected the same on untenable grounds. Had that been allowed, the ex-ruler could have been examined. Then he could have deposed that

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the land was granted to the father of the plaintiff. Learned appellate court has not dealt with the said issue in its proper perspective.

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Per contra, Ms.Mishra, learned Additional Standing Counsel for the respondents submits that the plaintiff had pleaded that patta had been granted by the ex-ruler, but no document has been filed in the court below to that effect. The princely State merged with the State of Orissa in the year 1948. The ex-ruler had no authority to transfer the property by way of lease or any other form in the year 1952. The plaintiff based his claim on the basis of the alleged patta, but claims title by way of adverse possession. The suit land is gochar.

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The plaintiff asserts that the ex-ruler K.K.C.Deo Deb had granted land in favour of his father in the year 1952, but then no such document has been filed evidencing transfer of the land in favour of his father. After independence, the princely State merged in the State of Orissa on 1.1.1948. There is no material on record that the suit land is the private land of the ex-ruler. Examination of the ex-ruler is in-consequential in the instant case.

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Adverse possession is not a pure question of law, but a blended one of fact and law. 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

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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 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 date of entry into the suit land has not been mentioned. In encroachment case, the plaintiff prayed for settlement of the land in his favour. Thus, there is no hostile animus.

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This matter may be examined from another angle. The plaintiff’s claim of title to the property and adverse possession are in terms contradictory.

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In Annasaheb Bapusaheb Patil and others Vrs. Balwant alias Balasaheb Babusaheb Patil (dead) By Lrs. and heirs and others, (1995) 2 SCC 543, the apex Court made an in-depth analysis of claim of title and claim to adverse possession over the property. The apex Court held :

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“Where possession can be referred to a lawful title, it will not to be considered to be adverse. The reason being that a person whose possession can be referred to

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a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no tide at all.”

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The apex Court in the case of Mohan Lal (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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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

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possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.”

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(Emphasis laid)

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