Surendra Ku.Tripathy Vs State

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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RSA No. 273 of 2013

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[In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908.

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Surendra Ku. Tripathy ...… Appellant -VersusState of Odisha ….. Respondent Advocate(s) appeared in this case :- ________________________________________________________ For Appellant : Mr. B.K.Nayak, Advocate For Respondent: Mr. A.R.Dash, Advocate

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_______________________________________________________ CORAM

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT

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8th July, 2026

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SASHIKANTA MISHRA, J.

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Heard Mr. B.K.Nayak, learned counsel for

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the appellant.

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The second appeal is directed against the judgment passed on 18.03.2013 followed by decree passed by learned District Judge, Sonepur in RFA No. 10 of 2009, confirming the judgment dated 13.02.2009, followed by decree passed by learned

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Page 1 of 7

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Civil Judge (Senior Division), Sonepur in C.S. No. 113 of 2004.

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The appellant was the plaintiff in the Court below and had filed the suit claiming declaration of right, title and interest by way of adverse possession, confirmation of possession and permanent injunction, etc. His case is that the suit land, though belonging to the State was under the occupation of his father for more than 40 years as on the date of filing of the suit. On death of his father, the appellant entered into possession. The Tahasildar, Rampur initiated an encroachment case being Encroachment Case No. 5/1972 against his father and by order dated 28.05.1978, directed his eviction. Despite such order however, the plaintiff claims that neither his father nor he were evicted from the case land. The plaintiff also approached the consolidation authority vide Objection Case No. 27 of 1998 but his claim was not accepted on the ground that he had failed to prove 30 years continuous possession over the suit land. Since the plaintiff

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Page 2 of 7

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came across a news item in a daily newspaper on 27.09.2007 whereby the property in question was put to public auction, he filed the suit in question claiming the relief as already stated hereinbefore.

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The state-defendants were set ex -parte though they were represented by the Government pleader in the trial Court. 5. In course of hearing, the plaintiff examined himself and exhibited five documents. The trial Court, after considering, the evidence adduced by the plaintiff and the materials on record found that the plaintiff could not establish his claim of adverse possession in any manner. The suit was thus, dismissed.

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The plaintiff carried appeal to the District Court. The First Appellate Court also found that the plaintiff could not prove the essential ingredients of adverse possession and accordingly, confirmed the trial Court decree.

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Being further aggrieved, the plaintiff has approached this Court with the present appeal.

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Page 3 of 7

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Mr. Nayak, learned counsel for the

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plaintiff-appellant submits that the trial Court committed manifest error in dismissing the suit firstly, by holding that the suit land is recorded as ‘Gochar’ and ‘Rasta’ in the ROR and therefore, objectionable in the nature. Secondly, despite finding the possession of the plaintiff to be from 1964, it erroneously held that the claim of adverse possession was not proved. Mr. Nayak further submits that the appellate Court has not applied its judicial mind and mechanically confirmed the trial Court’s judgment.

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Having heard learned counsel for the appellant at length and having perused the impugned orders passed by the Courts below, this Court finds no reason to interfere. This is for the reason that the first appellate Court held that to sustain the claim of adverse possession, the

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appellant was required to prove the following -

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“1) on what date he came into possession;

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2) what was the nature of his possession;

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3) whether the factum of possession was known to the other party;

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4) how long his possession has continued, and

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5) whether his possession was open and undisturbed”

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Page 4 of 7

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Thereafter, basing on the settled position of

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law as held in the case of Gandharba Kumar

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Mohanty, after him his Widow Jyotirmayee Mohanty & Ors. v. Surendra Prasad Naik¹ and the evidence on record, it was held that these basic ingredients were not proved. That apart, even assuming that the plaintiff was in possession since 1964, issuance of the notice in encroachment case in 1972 would operate as an assertion of right by the actual owner and therefore, the plea of adverse possession is unsustainable thereafter.

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True, the plaintiff, despite issuance of notice on eviction was not actually evicted from the suit land but in view of the order passed in the encroachment proceedings, he automatically lost his claim over the land. Insofar as the order passed by the consolidation authorities is concerned, the plaintiff has not placed any material before this Court to show that said order was ever challenged

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1 2009 (I) CLR 556

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Page 5 of 7

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before the higher authorities as provided under the OCH & PFL Act.

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This Court finds that the present appeal has been filed purely on factual aspects which both the Courts below have decided on the basis of evidence and materials on record. This Court, as already stated has found nothing wrong in the findings of the Courts below nor any substantial question of law available to be determined by it. In the case of Karnataka Board of Wakf v. Anjuman-

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E-Ismail Madris-Un-Niswan² , it is well settled that the jurisdiction of the High Court under Section 100 of the Code of Civil Procedure is confined to deciding only appeals which involve a substantial question of law. The High Court cannot interfere with concurrent findings of fact merely because another view is possible, unless such findings are shown to be perverse or based on no evidence.

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