The High Court dismissed an appeal against a decree where the trial court dismissed a suit for perpetual injunction. The court held the suit was not maintainable as the plaintiff's title was under a cloud due to vesting orders and adverse possession claims, and the appeal failed to raise a substantial question of law.
Appeal failed and was dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF ORISSA: CUTTACK
RSA No.479 of 2005
From the judgment and decree dated 21.9.2005 and 28.9.2005 respectively passed by Sri S.K. Mishra, learned District Judge, Dhenkanal in RFA No.25 of 2004 confirming the judgment dated 1.5.2004 passed by Sri P.L.Satapathy, learned Civil Judge (Junior Division), Dhenkanal in Civil Suit No.19 of 2002.
| Manoj Kumar Panda | …. Appellant |
|
|---|---|---|
| Versus | ||
| State of Orissa & others | …. Respondents | |
| For Appellant | … | Mr. L.K. Maharana, Adv. |
| For Respondents 1 & 2 |
… | Mr. R.P. Mohapatra, AGA |
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 17.01.2019 : Date of judgment: 17.01.2019
Dr. A.K.Rath, J Plaintiff is the appellant against a confirming judgment in a suit for perpetual injunction.
2. Case of the plaintiff was that the suit land was originally recorded in the name of Sankar Pratap Mahindrabahadur Singh Deo. The kissam of the land was Anabadi. In the settlement R.O.R. of the year 1965, there was a note of possession of Purnananda Sidha Brahmachari Guru Shree Sarba Nanda Sidha Brahmachari since 1954. After him, his disciple Dibyananda Sidha Brahmachari and thereafter his disciple Gouranga Sidha Brahmachari was in possession of the suit land without any interruption. On 17.2.1986,
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Dibyananda Sidha Brahmachari entered into an agreement to sale the land with the plaintiff for a consideration of Rs.4,000/- During rent revision settlement of Dhenkanal town of the year 1989, the suit land was recorded in the name of the State in Anabadi khata with a note that it was the ceiling surplus land of Sankar Pratap Singhdeo Mahindra Bahadur. The vesting of land under OLR Act is illegal, since Chapter IV of the OLR Act came into force on 7.1.1972. By that time, defendant no.3 and his ancestors had acquired title by way of adverse possession. The suit land does not belong to the State. Encroachment Case Nos.1425 of 1992-93 and 1147 of 2001 were initiated against him. Plaintiff paid the penalty on coercion. Apprehending dispossession, he instituted the suit seeking the relief mentioned supra.
3. Though notice was issued to the defendants, they had chosen not to contest the suit and were set ex parte. To substantiate the case, the plaintiff had adduced evidence. Learned trial court came to hold that the suit land was recorded in the name of Sankar Pratap Singh Deo Mahindrabahadur, Ex-ruler of Dhenkanal. In the remarks column, there was a note of possession in favour of Purnananda Sidha Brahmachari. In the current settlement of the year 1989, the suit land had been recorded under Anabadi khata. The kissam of the land is Bari. It was reflected that the suit land was
the ceiling surplus land and in illegal possession of Manoj Kumar Panda. On 17.2.1986, Dibyananda Sidha Brahmachari had executed an agreement to sale of the land in favour of Manoj Kumar Panda. Encroachment Case Nos.1426/1992-93 and 1147 of 2001 were initiated against the plaintiff. The plaintiff had paid penalty on 24.10.2001. It was further held that the evidence regarding continuous possession of Purnananda Sidha Brahmachari with hostile animus to the interest of the Ex-ruler was not established.
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Dibyananda Sidha Brahmachari could not alienate the land in favour of the plaintiff as he had no title over the same. Moreover, Dibyananda Sidha Brahmachari had not alienated the land, but executed the agreement to sale. The suit land had been declared as ceiling surplus land of the Ex-ruler. The order passed by the OPLE authorities had attained finality. The land had been vested in the State. The State became the owner of the suit land. The plaintiff failed to establish title over the land. Held so, it dismissed the suit. Unsuccessful plaintiff challenged the judgment and decree before the learned District Judge, Dhenkanal in RFA No.25 of 2004, which was eventually dismissed.
4. Heard Mr. L.K. Maharana on behalf of Mr. S.P. Mishra, learned Senior Advocate for the appellant and Mr. R.P. Mohapatra, learned AGA for the respondents 1 and 2.
5. Adverse possession is not a pure question of law, but a blended one of fact and law. In the celebrated judgment, the Privy Council in the Secretary of State v. Debendra Lal Khan, AIR 1934 Privy Council 23 held that the classical requirement of adverse possession is that the possession should be nec vi nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Devi v. The Collector of Khulna and others, Indian Appeals 1900 Vol. XXVII at page 140 that “the possession required must be adequate in continuity, in publicity, and in extent to shew that it is possession adverse to the competitor”.
6. In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779, the apex Court observed as under :-
"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
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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."
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.”
7. Date of entry into the suit land has not been reflected. The plaintiff has paid penalty. The submission of the learned counsel for the appellant that the penalty was paid on coercion is difficult to fathom. The order passed by the OPLE authorities had not been challenged. The same has attained finality. The plaintiff woke up from deep slumber and agitated the claim. The element of hostile animus is absent.
8. The matter may be examined from another angle. In Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. and others, AIR 2008 SC 2033, the apex court held that where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with
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plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. In the instant case, the cloud of suspicion is raised over the plaintiff’s title. The simple suit for permanent injunction is not maintainable.
9. Resultantly, the appeal fails and is dismissed, since the same does not involve any substantial question of law. There shall be no order as to costs.
……………………….. DR. A.K.RATH, J
Orissa High Court, Cuttack. Dated the 17th January, 2019/PKS
3 issues framed by the court
Whether a suit for perpetual injunction is maintainable where the plaintiff's title is in dispute or under a cloud.
Whether the appellant established the elements of adverse possession regarding the suit land.
Whether the appeal raises a substantial question of law warranting academic discussions.
Colour shows how this judgement treated each authority
Secretary of State v. Debendra Lal KhanReferred¶18
Secretary of State v. Debendra Lal Khan, AIR 1934 Privy Council 23 · Who else cites this
Radhamoni Devi v. The Collector of Khulna and othersReferred¶18
Radhamoni Devi v. The Collector of Khulna and others, Indian Appeals 1900 Vol. XXVII
Karnataka Board of Wakf v. Govt. of IndiaReferred¶19
Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 · Who else cites this
Anathula Sudhakar v. P. Buchi ReddyApplied¶26
Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. and others, AIR 2008 SC 2033 · Who else cites this
Manoj Kumar Panda
State of Orissa
A.K. Rath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
