The High Court of Orissa dismissed the second appeal filed by legal representatives challenging the lower courts' refusal to recognize title by adverse possession over Government land.
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.
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.292 of 2012
In the matter of an appeal under section 100 of the Code of Civil Procedure assailing the judgment and decree dated 04.05.2012 and 14.05.2012 respectively passed by the learned Additional District Judge, Bhubaneswar in R.F.A. No.107 of 2006 confirming the judgment and decree dated 01.09.2006 and 21.09.2006 respectively passed by the learned 2nd Additional Civil Judge, (Sr. Division), Bhubaneswar in T.S. No.120/644 of 2000/2004.
Narendra Pattasani (Since Dead) & …. Appellants
Others
-versus-
Collector, Khura and Another …. Respondents
Appeared in this case by Hybrid Arrangement Arrangement
(Virtual/Physical Mode):
For Appellants - Mr.S.K. Mishra, J. Pradhan
P. Prusty, B.K. Nayak
D.K. Pradhan and S.K. Rout
For Respondents -
CORAM:
MR. JUSTICE D.DASH
Date of Hearing & Judgment :28.10.2021
D. Dash, J
1. The Appellants, by filing this Second Appeal under Section 100 of the Civil Procedure Code (for short, ‘the Code’) have assailed the judgment and decree dated 04.05.2012 and 14.05.2012 respectively passed by the learned Additional District Judge, Bhubaneswar in R.F.A. No.107 of 2006.
By the said judgment, the First Appellate court, while dismissing the First Appeal filed by these Appellants-Plaintiffs under
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section 96 of the Code, has confirmed the judgment and decree dated 01.09.2006 and 21.09.2006 respectively passed by the learned 2nd Additional Civil Judge, (Sr. Division), Bhubaneswar in T.S. No.120/644 of 2000/2004.
The Plaintiffs have thus been non-suited and the Courts below have found that they are not entitled to the reliefs claimed as against the Respondents-Defendants.
2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.
3. The Plaintiffs’ case is that Bhaskar Patsani, who happens to be their father occupied the suit land on 15.03.1912 when the area was covered by bushes. The occupation of the land was to the extent of Ac.0.580 decimals then recorded in khata no.345 (sabik) of MouzaBaramunda. It is stated that Bhaskar cleared up throny bushes and reclaiming the same made it arable and in the passage of time, he planted mango trees all around the area and fenced the same. It is stated that Bhaskar used to cultivate on a portion of the suit land and grow vegetables. In the year 1955, in the record of the settlement, the name of the Bhaskar those found mention as the possessor of the suit land. For the same, the encroachment case bearing no.301 of 1956 was initiated by the concerned Tahasildar so as to remove the unauthorized occupation of the suit land by the father of the Plaintiffs.
It is stated that in that proceeding, the Plaintiffs’ father was directed to pay penalty for said unauthorized occupation of the suit land and accordingly, it was so realized from him on 02.10.2015. However, despite such imposition of penalty and its collection, Bhaskar was never evicted from the suit land and as such continued to
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possess the suit land peacefully till his death. In the settlement operation of the year 1975, the father of the Plaintiffs’ had handed over the receipts granted by the then Tahasildar to the Settlement Authorities with a hope that his name as possessor of the suit land would again be reflected in the record of right. During the last stage of publication of the record of right, the Plaintiffs’ father died and that was the year 1975. The record of right finally published in the settlement did not, however, indicate the actual position of the suit land as it then stood in the field and the factum of possession of the suit land by Bhaskar was not reflected anywhere therein. It is next stated that despite all these developments, Bhaskar was in possession of the suit land till his death and these Plaintiffs being his legal representatives also occupied the same as such and in this way, the possession of the suit land with them has remained for more than thirty years. Such possession is said to be within the knowledge of the true owner, i.e, the State. So, it is claimed that the Plaintiffs have perfected their right, title and interest over the suit land by virtue of adverse possession.
Alleging that on 14.07.2000, the adjacent neighbours who were in inimical terms with the Plaintiffs with help of Revenue Authorities wanted to dispossess them from the suit land by constructing the road over it, projecting that as the cause of action, the Plaintiffs filed the Suit for declaration right, title and interest over the Suit for declaration of their right, title and interest and confirmation of possession with further prayer for issuance of order of perpetual injunction restraining the Defendants from disturbing their possession over the suit land.
4. The Defendants, in their written statement denying the above facts pleaded by the Plaintiffs as to possession of the suit land even after the order passed in the Encroachment Case stated that the record
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of right published in the current settlement in the year 1988-89 clearly shows that Government in the Department of General Administration to be the owner of the suit land. It is stated that now the kisam is Bagayat and earlier it was Jungle kisam land. So, mango and other trees had automatically grown over there without being planted by anyone.
5. The Trial Court, on the above rival pleadings, having framed seven issues, has answered all those against the Plaintiffs and dismissed the Suit.
6. In the First Appeal filed by the unsuccessful Plaintiffs as it appears from the judgment keeping in view the contentions raised, the decision rendered on each of the issues by the Trial Court has been scrutinized. However, the final result has remained the same as recorded by the Trial Court. Hence, the present Appeal.
7. Mr.S.K.Mishra, learned counsel for the Appellants submits that when admittedly the Plaintiffs are found to be in possession of the suit property since the time of their father and despite the initiation of the encroachment proceeding and payment and penalty all along thereafter, the Courts below have erred in law by declining to record a finding that the Plaintiffs have perfected the title over the suit land by virtue of adverse possession. According to him, on the face of the overwhelming evidence on record as to the possession of the suit land of the Plaintiffs exercising all the rights of the ownership to the knowledge of the Defendants and denying the title of the Defendants, a finding has to flow that the Plaintiffs have acquired right, title and interest over the suit land by adverse possession. He thus submits that the above are the substantial questions of law, which arise for their answer in this Appeal.
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8. Keeping in view the submissions made, I have carefully gone through the judgments passed by the Courts below.
Admittedly, with regard to the occupation of the suit land by the father of the Plaintiffs’, an encroachment proceeding in the year 1956 had been initiated. In that proceeding, penalty has been realized from Bhaskar, the father of the Plaintiffs on 02.10.1956. So, even if it is accepted for a moment that Bhaskar remained in possession of the suit land, even after paying the penalty when being evicted, the possession as it is cannot to be viewed as adverse to the true owner and with hostile animus. It would continue to be of precarious in nature at the mercy of the true owner. The Plaintiffs have no where pleaded as to from which date after that payment of penalty, the possession so commenced by expressing that it was as of the owner by denying the title of the true owner and to the knowledge of the true owner. There is no evidence on this score. As per the settled position of law, mere long possession never gives rise to a case of acquisition of title by adverse possession. The classical requirements for the purpose is nec vi, nec clam, nec precario. The discussion of evidence let in by the parties as have been made by the Courts below would show that all said ingredients have not been established through clear, cogent and acceptable document backed by concrete pleadings on those scores. The Plaintiffs nor their father have taken any such concrete step in advancing any such claim before any quarter as to acquisition of title over the suit land by adverse possession prior to the Suit. The settlement documents do not provide any such indication in the direction of fulfilling the essential ingredients for establishment of a case of acquisition of title over the suit land by adverse possession.
9. In view of all the aforesaid, this Court is not in a position to accept the submission of the learned counsel for the Appellants-
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Plaintiffs that there arises the substantial questions of law as indicated at paragraph-6 for being answered in this Appeal. This Appeal thus does not merit admission.
10. Accordingly, the Appeal stands dismissed. No order as to cost.
(D. Dash) Judge
Basu
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2 issues framed by the court
Whether the appellate court is justified in dismissing the appeal and declining to record a finding of title by adverse possession.
Whether the Plaintiff's possession, after payment of penalty under an encroachment proceeding, can be considered adverse to the Government.
Narendra Pattasani (Since Dead) & Others
Collector, Khura
D.Dash
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
