Dismissed

Raj Kishore Panda v. Govt. of Odisha

Orissa HC26 Mar 2021RSA/57/2020

Case brief

AI extract

What is this about?

The High Court dismissed the appellant's civil appeal challenging a decree against his claim to title over suit land acquired through adverse possession. The court held that the appellant's earlier payment of a fine in an encroachment proceeding indicated recognition of the State's title, negating the required hostile possession.

What did the court decide?

None. The appeal is dismissed with no order as to costs.

Raj Kishore Panda Vs Govt. of Odisha — Property and Title | Orissa HC (2021)

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HIGH COURT OF ORISSA : CUTTACK

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RSA No.57 of 2020

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In the matter of appeals under section 100 of the Code of Civil Procedure assailing the judgment and decree dated 19.10.2019 and 06.11.2019 respectively passed by the learned 2^nd Additional District Judge, Balasore in RFA No.95/81 of 2013-2009.

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………

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Sri Raj Kishore Panda … Appellant.

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-VERSUS-

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Government of Odisha and another

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… Respondents.

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Advocate(s) who appeared in this case by Hybrid Arrangement (Virtual/Physical) Mode

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For appellants

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… Mr. S.P. Mishra, Senior Advocate M/s. S. Mishra, G.N. Parida, A. Agarwal, B. Jena, S. Swaroop, N. Sharma, M. Mohanty and E. Agarwal, Advocates.

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For respondent ` … None

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P R E S E N T :

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THE HON’BLE MR. JUSTICE D.DASH

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Date of Hearing : 23.03.2021 :: Date of Judgment:26.03.2021

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-------------------------------------------------------------------------------------------- D.Dash,J . The Appellant, by filing this appeal, under section 100 of the Code of Civil Procedure (for short, ‘the Code’) has assailed the judgment and decree dated 19.10.2019 and 06.11.2019 respectively passed by the learned 2^nd Additional District Judge, Balasore in RFA No.95/81 of 20132009.

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By the said judgment and decree, the lower Appellate Court has confirmed the judgment and decree dated 20.05.2009 and 20.06.2009 respectively passed by the learned Civil Judge (Senior Division) in C.S. No. 1038 of 2005-I.

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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 Trial Court.

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The unsuccessful Plaintiff’s case is that the suit schedule land was originally belonging to Ex-Intermediaries, Choudhury Balabhadra Das and others and it was recorded as per the C.S. record under khata No. 353 under ‘Danda’ kisam. It is stated that said Ex-Intermediary keeping the request of Radhakrushna Panda who happens to be the father of the Plaintiff while in possession of the suit land issued ‘Amalanama Patta’ in favour of the Plaintiff. Said patta is said to have been granted on 01.04.1944. The Plaintiff’s father then possessed the suit land on the strength of that ‘Amalanama Patta’ and made the same fit for cultivation. He also paid rent in the ‘Zamindari-Sherasta’. So it is stated that the Plaintiff entered into the possession of the suit land right from the year 1944 through his father by virtue of that ‘Amalanama Patta’ granted by Ex-Intermediary. It is his case that he has been in possession of the suit land to the knowledge of all concerned and that possession has all along been open, peaceful and continuous without any interference from any quarter. The Plaintiff thus claims to have acquired right, title, interest and possession over the suit land by adverse possession. The Plaintiff having approached the Settlement Authority in course of Major Settlement Operation for recording of the suit

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land in his name, it was all in order up to the ‘Khanapuri’ stage of the Settlement Operation. Then however, the Settlement Authority raised a query in respect of the suit land. The Yadast record revealed Plaintiff’s possession and that had been noted in respect of the land under C.S. plot No. 119 being under C.S. khata No. 353 by virtue of that ‘Hata Patta’ granted by Ex-Intermediary. Finally however the record of right was published in the Settlement Operation recording the land in suit in favour of the Defendant No. 1-State. This was in the year 1985. Be that as it may, the note of possession finds mention in the said ROR in favour of the Plaintiff. The Plaintiff thus claims to have got the right, title, interest and possession over the suit land.

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The Defendants-State and its Officials in their written statement have averred that the land under M.S. plot No. 175 , khata No. 530 corresponds to C.S. plot No. 119 under C.S. khata No. 353 towards east measuring Ac.0.32 dec. out of Ac.2.81 dec. It is said that the Ex-Intermediary has neither submitted a ‘Rafa’ in the name of the Plaintiff nor his father nor any Tenant Ledger had been opened after submission of the return by the Ex-Zamindar. It is also stated that the suit land was never recorded in the name of ExIntermediary namely Choudhury Balabhadra Das and others and no such ‘Amalanama Patta’ had been granted in favour of the Plaintiff on 01.04.1944. The Plaintiff’s possession of the suit land by making it fit for cultivation and the factum of payment of rent in the ‘Zamindari Sherasta’ have been denied. It is stated that the Plaintiff has not possessed the suit land at any time and has not at all acquired title by adverse possession. According to them, there was no such Yadast entry as claimed by the Plaintiff. It is stated that the record reveals that the suit land under khata No. 353, plot No.

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119 was of ‘Danda’ kissam and in the Major Settlement Operation, its kissam has been noted as ‘Godanda’ under Rakhita khata which is not settleable in favour of any one. The land being of communal nature is being used by general public.

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The Trial Court on the above rival pleadings framed as many as eight issues. Taking up the crucial issues as to the right, title, interest of the Plaintiff as claimed to have been acquired by way of adverse possession; the legality of the M.S. record of right in respect of the suit land and the nature of the land; the decisions have been rendered against the Plaintiff.

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The Plaintiff having been non-suited had approached the lower Appellate Court in filing the First Appeal under section 96 of the Code. The same has also been dismissed. The lower Appellate Court has affirmed the findings by assigning the reasons of its own and upon appreciation of the evidence on record at its level. Hence, this appeal.

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Mr. S.P. Mishra, learned Senior Counsel for the Appellant (Plaintiff) submitted that the lower Appellate Court is not justified in confirming the judgment and decree passed by the Trial Court without deliving upon the materials on record and without assigning cogent and justifiable reasons. It was further submitted that the Courts below did commit the error by not considering the Yadast report under Ext. 8 as also the note of possession in respect of the suit land in favour of the Plaintiff in Major Settlement Record. He also submitted that when the very possession of the suit land by the Plaintiff on the strength of Hata Patta stands adverse to the true owner and said state of affair having continued for upward of the prescribed in law, the

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Plaintiff ought to have been held to have perfected his title over the suit land by adverse possession.

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All these above are, according to him, the substantial questions of law which surface in case standing to be answered in this Appeal.

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The First Appellate Court having addressed the contention raised from the side of the Plaintiff in urging for passing a decree declaring title etc. in the suit in his favour has not accepted the claim of the Plaintiff as to his tenancy right over the suit land. It has next held that in the facts and circumstances of the case, the Plaintiff is also not entitled to the protection under section 8 (1) of the O.E.A. Act.

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Coming to the question of acquisition of title over the suit land by adverse possession, at the end, finding has been recorded against the Plaintiff. In that exercise, the First Appellate Court appears to have examined the evidence in the backdrop of the rival case keeping in mind the settled position of law holding the field of acquisition of title over immovable property by adverse possession by a possessor as against the owner.

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In addressing the submission of the Senior Counsel for the Appellant (Plaintiff) to find out as to if there arises the substantial questions of law meriting admission of this Appeal, at the cost of repeatation some essential facts and circumstances emanating from the pleadings as well as the evidence need be placed.

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It has been proved through evidence that one Land Encroachment Case No. 4397 of 1993 had been initiated against the Plaintiff and he having

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been ordered to pay the penalty for his unauthorized possession has paid the penalty as imposed therein. This fact has in no way has received any explanation from the side of the Plaintiff.

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The classical requirements of adverse possession are: nec vi, nec calm, nec precario . The possession must be adequate in continuity, in publicity and in extent to show that it was adverse to the true owner as that of a competitor to the title of the true owner.

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Adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessor’s positive intent to dispossess-one Mere possession for any length of time does not clothe the possessor with the title by way of adverse possession. One of the most important ingredients is that the possessor must continue to possess the property denying the title of the true owner all through by exercising the right of ownership during the period. In the case at hand, fine in the Encroachment Proceeding having been paid by the Plaintiff, the same is clearly an act of recognition of the title of the State and thus the question of denial of the title as up till that time does never arise. Therefore even if it is accepted for a moment that the Plaintiff was in possession of the land in question since the time of his father from the year 1944, said possession up till the date of payment of fine in Encroachment Case of the year 1993 is absolutely of no legal significance and the hostile animus even during that period wholly lacks thereby.

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The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person even though is having no right over the property entered into possession of the property

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of someone else and continues to be in possession setting up title in himself and adversely to the title of the true owner they only a case of acquisition of title by adverse possession can sustain, provided it is for the required length period and the nature of possession is open, peaceful and without interruption and as such established by leading clear, cogent and acceptable evidence. The action of the Plaintiff in paying the fine in the Encroachment Proceeding of the year 1993 is nothing but an expression in clear term as to lack of hostile animus in possessing the same. The facts and circumstances emanating from the evidence on record being tested in the touch stone of the above settled principles of law, the end result of the suit receiving seal of approval in the First Appeal, are found to be well in order.

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For all the aforesaid, this Court is not in a position to accept the submission of the learned Senior Counsel for the Appellant (Plaintiff) that there surfaces the substantial question of law in the case meriting admission of this Appeal.

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Accordingly, the Appeal stands dismissed. No order as to cost.

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…………………….. D. Dash, J.

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Orissa High Court, Cuttack

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Dated the 26^th day of March, 2021/ Aks

Raj Kishore Panda v. Govt. of Odisha

Case brief

What is this about?

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Raj Kishore Panda v. Govt. of Odisha

Case brief

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