Jharkhand High Court

Somra Oraon vs Chandra Sekhar Oraon on 11 September, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                    S.A. No.246 of 2023
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(Against the judgment dated 10.08.2023 passed by learned District Judge-I, Lohardaga in Civil Appeal No.03 of 2016)

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Somra Oraon, s/o Late Budhu Oraon, aged about 60 years, r/o village Jamhare, PO Charhu, PS Kisko, District Lohardaga .... .... .... Plaintiff/Appellant/Plaintiff Versus

1. Chandra Sekhar Oraon,

2. Basu Oraon,

3. Satprakash Oraon

4. Mani Oraon All 1 to 4 s/o Late Bhanga Oraon, r/o village Jamhare, PO Charhu, PS Kisko, District Lohardaga

5. The Secretary Bhudan Yagya Committee having its office at Indrapuri, Ranchi, PO Hesal, PS Sukhdeonagar, District- Ranchi

6. The Deputy Commissioner, Lohardaga, PO, PS & District Lohardaga .... .... .... Defendants/Respondents/Defendants

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           For the Appellant          : Mr. Yogesh Modi, Advocate
                                        Ms. Ruchi Mukti, Advocate
                                        Ms. Omiya Anusha, Advocate
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                                          PRESENT
            HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the learned counsel for the appellant.

2. This Second Appeal filed under section 100 of the Code of Civil

Procedure, 1908 has been preferred against the judgment and decree of

affirmance dated 10.08.2023 passed by learned District Judge-I, Lohardaga in

Civil Appeal No.03 of 2016 whereby and where under the learned first

appellate court being the District Judge-I, Lohardaga has dismissed the appeal

and upheld the judgment and decree passed by the learned trial court being

Additional Munsif, Lohardaga in Title Suit No.41 of 2009 and dismissed the

appeal.

3. The brief facts of the case is that the plaintiff filed Title Suit No.41 of 2009

in the court of Munsif, Lohardaga with a prayer for a decree for declaration of

right, title, interest and possession over the suit schedule A property with

occupancy and Kaimi right in favour of the plaintiff, cost of the suit and other

reliefs.

4. The case of the plaintiff in brief is that the plaintiff is a permanent settler

of the village Jamhare. The suit property before the ancestors of the plaintiff

coming in possession thereof was the Parti land. In the year, 1947 the father of

the plaintiff entered into the suit property and he got a house built over the

suit property. The plaintiff has been residing in the residential house with

family members after the death of his father Budhu Oraon, thus, the plaintiff

claims that he has inherited the suit property by way of succession and

inheritance. It is the further case of the plaintiff that he has acquired title by

way of adverse possession within the knowledge of all concerned since the

lifetime of this father. It is also the case of the plaintiff that his defective title

has been confirmed by way of adverse possession over the suit property and

occupancy right occurred in favour of the plaintiff, since the lifetime of his

father. The name of the father of the plaintiff was published in the final

publication of Hal Survey Khatiyan in or about the year 1989 and the

residential house was entered as 'Makan Mein Sahan' in the entry of Hal

Survey Khatiyan. In the month of September, 2009, the defendant claimed title

over the suit property, hence, the plaintiff filed the suit.

5. The defendant No.1 was debarred from filing the written-statement.

6. The defendant No.3 of the suit who was the respondent No.2 before the

learned first appellate court, in his written-statement challenged the

maintainability of the suit on various technical grounds. The defendant further

pleaded that the predecessors-in-interest of the plaintiff were permanent

residents of village Ugra. The plaintiff's father Budhu Oraon had no residence

at village Jamhare nor had any residence in the said village. The defendant

No.3 gave permissive possession to the father of the plaintiff but during the

course of present survey operation, the plaintiff's father illegally and without

any right or title in the suit property, got his name entered and recorded as

Raiyat; with the connivance of the survey authority. This defendant denied all

the averments of the plaintiff made in the plaint. This defendant further

pleaded that the suit land was a Gair Majaruwa Land and the land was donated

by the then landlord to Bihar Bhudan Yagya Samitee; which came in

possession over the same. The father of the plaintiff used to live in the house of

his father-in-law namely Deothan Oraon in village Jamhare. The father of the

plaintiff was ousted from the house of Deothan Oraon and upon the request

made by the father of the plaintiff, this defendant permitted the father of the

plaintiff to remain in a portion of the house of the defendant. The defendant

filed Title Suit No.11 of 2010 against the plaintiff which was pending. This

defendant acquired the suit house through settlement on the Bihar Bhudan

Yagya Samitee and paying rent with respect thereto. The permissive

possession of the plaintiff can never become adverse nor confer any title. The

defendant further pleaded that the plaintiff is trying to grab the land of the

defendant on the basis of the entry made in the revenue records.

7. On the basis of the rival pleadings of the parties, the learned trial court

settled the following only one issue:-

(i) Whether the plaintiff is entitled to relief as claimed in the suit?

8. The learned trial court considered the evidence in the record and

considering the fact that the entry in the revenue records cannot confer title on

the person whose name appears in the revenue record; came to the conclusion

that the plaintiff failed to prove his title and possession over the suit land and

dismissed the suit.

9. Being aggrieved by the judgment and decree passed by the learned trial

court, the plaintiff preferred Civil Appeal No.03 of 2016 in the court of

Principal District Judge, Lohardaga which was ultimately heard and disposed

of by the learned first appellate court by the impugned judgment as already

indicated above.

10. The learned first appellate court after considering the materials available

in the record and submissions made before it, formulated the following two

points for determination:-

(I) Whether plaintiff acquired valid right, title, interest over the suit property by way of adverse possession?

(II) Whether there is any defect in judgment and decree in the Trial Court?

11. The learned first appellate court made independent appreciation of the

evidence in the record and considered that though the plaintiff claims title by

way of adverse possession, yet the plaintiff failed to establish the ingredients of

adverse possession as has been laid down by the Hon'ble Supreme Court of

India in the case of Nand Ram (Dead) through Legal Representatives &

Others vs. Jagdish Prasad (Dead) through Legal Representatives reported in

(2020) 9 SCC 393; as the plaintiff failed to plead and prove as to who was the

true owner of the suit land. The plaintiff did not issue any notice under Section

80 of the C.P.C. to the Government. The learned first appellate court also

considered the observations made by the Hon'ble Supreme Court of India in

the case of R. Hanumaiah & Another vs. Secretary to the Government of

Karnataka, Revenue Department & Others reported in (2010) 5 SCC 203

wherein in para-20 of which it was observed by the Hon'ble Supreme Court of

India that many civil courts deal with suits for declaration of title and

injunction against government, in a casual manner, ignoring or overlooking

the special features relating to government properties. It was further observed

by the Hon'ble Supreme Court of India therein that whether the government

contests the suit or not, before a suit for declaration of title against a

government is decreed, the plaintiff should establish, either his title by

producing the title deeds which satisfactorily trace title for a minimum period

of thirty years prior to the date of the suit (except where title is claimed with

reference to a grant or transfer by the government or a statutory development

authority), or by establishing adverse possession for a period of more than

thirty years. The Hon'ble Supreme Court of India further observed in the said

judgment that in such suits, courts cannot, ignore the presumptions available

in favour of the government, and by such ignorance not to grant declaratory or

injunctive decrees against the government by relying upon the principles that

plaint averments which are not denied or traversed are deemed to have been

accepted or admitted and the courts in such cases should find out whether the

plaintiffs in such cases is recorded to be the owner or holder or occupant of the

property in the revenue records or municipal records, for more than thirty

years. Mere temporary use or occupation without the animus to claim

ownership or mere use at sufferance will not be sufficient to create any right

adverse to the Government. It was further observed that in order to oust or

defeat the title of the government, a claimant has to establish a clear title which

is superior to or better than the title of the government or establish perfection

of title by adverse possession for a period of more than thirty years with the

knowledge of the government.

12. The learned first appellate court further considered the judgment of the

Hon'ble Supreme Court of India in the case of Saroop Singh vs. Banto &

Others reported in (2005) 8 SCC 330 wherein it was observed in paragraph-29

of the said judgment that in terms of Article 65 of the Limitation Act, the

starting point of limitation does not commence from the date when the right of

ownership arises to the plaintiff but commences from the date of defendant's

possession becomes adverse for which animus possidendi is one of the

ingredients of adverse possession.

13. The learned first appellate court further considered the judgment of the

Hon'ble Supreme Court of India in the case of T. Anjanappa & Others vs.

Somalingappa & Another reported in (2006) 7 SCC 570 in para-20 of which, it

was observed that it is a settled principle of law that mere possession however

long does not necessarily means that it is adverse to the true owner. The

learned first appellate court also considered that it is the admitted case of the

plaintiff, that rent has not been remitted to the Government in respect of the

suit land. No rent receipt could be produced by the plaintiff. The plaintiff has

failed to establish his continuous uninterrupted physical possession over the

suit land to the knowledge of the State Government for the requisite period of

thirty years or more.

14. The learned first appellate court also considered that the entries made in

the revenue records and right during the survey operation do not create any

conclusive proof of title in the name of the person whose name appears in the

revenue record and the presumption of the entries is only in respect of the

possession though even such presumption is rebuttable and as the plaintiff

has failed to prove his title and right over the suit land by way of adverse

possession, the learned District Judge-I, Lohardaga dismissed the appeal and

upheld the judgment and decree.

15. Learned counsel for the appellant relies upon the judgment of a co-

ordinate Bench of this Court in the case of Dwarika Sonar vs. Most. Bilguli

reported in 2003 (2) JLJR 708 and submits that in the said case it was observed

by the co-ordinate Bench that Section 84 (3) of the Chotanagpur Tenancy Act

provides that if Record of Rights is finally published, it shall be conclusive

evidence that the record has been duly made according to law.

16. It is then submitted that as the plaintiff has filed the Record of Rights

prepared under Section 84 of the Chota Nagpur Tenancy Act in favour of his

father, both the courts below ought to have accepted the same, as the

document establishing the title of the plaintiff over the suit land and having

not done so, both the courts below have committed a grave illegality.

17. Learned counsel for the appellant next relies upon the judgment of the

co-ordinate Bench of this Court in the case of Joseph Munda vs. Most. Fudi &

Others reported in [2009 (2) J C R 247 (Jhr)] wherein the co-ordinate Bench

observed that the status of a person duly entered in the finally published

Record of Rights cannot be altered after 58 years by filing a suit and further his

right cannot be taken away by applying the custom that only male descendants

will inherit the land left by their ancestors.

18. Learned counsel for the appellant further submits that both the courts

below failed to appreciate the evidence in their right perspective. Hence, it is

submitted that the finding of facts arrived at by both the courts below being

perverse, the same be set aside and the suit of the plaintiff be decreed after

formulating appropriate substantial question of law.

19. Having heard the submission of the learned counsel for the appellant

made at the Bar and after carefully going through the materials available in the

record, so far as the judgments relied upon by the learned counsel for the

appellant in the case of Dwarika Sonar vs. Most. Bilguli (supra) and Joseph

Munda vs. Most. Fudi & Others (supra) are concerned, they are the settled

principles of law. There is no dispute regarding the same but it is also a settled

principle of law that entry in the revenue records are made only for fiscal

purposes and such entries cannot confer title upon the persons whose name

appears in such revenue records. It is pertinent to mention here that the

undisputed fact remains that the plaintiff or his father never paid any land

revenue to the Government so, obviously no land revenue receipt could be

produced.

20. It is a settled principle of law that adverse possession requires all the

three classic requirements to co-exist at the same time, namely, adequate in

continuity, adequate in publicity and adverse to a competitor, in denial of title

and his knowledge moreover animus possidendi under hostile colour of title is

also required as has been observed by the Hon'ble Supreme Court of India in

the case of Ravinder Kaur Grewal & Others vs. Manjit Kaur & Others

reported in (2019) 8 SCC 729 paragraph-60 of which reads as under:-

"60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession." (Emphasis supplied)

21. It is also a settled principle of law that 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; as has been held by the Hon'ble

Supreme Court of India in the case of Karnataka Board of Wakf vs.

Government of India & Others reported in (2004) 10 SCC 779 inter alia

observed as under in para 11:-

"11. Xxxxx Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. 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."

22. Now, coming to the facts of the case; there is absolutely no pleading or

proof put forth by the plaintiff as to on what date the father of the plaintiff

came in possession nor the other essential ingredients of adverse possession

could be established by the plaintiff as has rightly been observed by the

learned first appellate court.

23. Since, the plaintiff failed to establish his title, his suit has rightly been

dismissed by the trial and the said judgment has been upheld by the learned

first appellate court.

24. Under such circumstances, this Court is of the considered view that

there is absolutely no substantial question of law involved in this Second

Appeal.

25. Accordingly, this Second Appeal, being without any merit, is dismissed