Dasarath Sharma & Others vs State Of Odisha
2021 Latest Caselaw 4620 Ori

                         HIGH COURT OF ORISSA: CUTTACK

                              R.S.A. No. 217 of 2018

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

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Dasarath Sharma & others ....... Appellants

-Versus-

State of Odisha ....... Respondent

For Appellants : Mr. S.P. Mishra (Sr. Advocate) Mr. Gautam Mukherji (Sr. Advocate) M/s. A.C. Panda, S.D. Ray, S. Sahoo, S.Priyadarsini & S. Panda

For Respondent : Miss Samapika Mishra (Additional Standing Counsel)

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Judgment delivered on : 06.04.2021

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P R E S E N T:

THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA

--------------------------------------------------------------------------- K.R. Mohapatra, J. This appeal under Section 100 of the Code of

Civil Procedure, 1908 has been filed assailing the judgment

and decree dated 16th January, 2018 passed by learned

Additional District Judge, Jharsuguda in RFA No.07 of 2014

whereby he confirmed the judgment and decree dated 1st

February, 2014 and 24th February, 2014 respectively passed

by learned Civil Judge (Senior Division), Jharsuguda in TS

No.220/100 of 1995-2004.

1.1 For the sake of convenience, the parties are

described as per their status in the trial Court.

2. Plaint averments in short reveal that Suit land in

HS Khata No.93 and HS Plot No.121 (Gochar) measuring an

area Ac.14.70 decimal of mouza Ekatali, which corresponds to

MS Khata Nos.499 and 497 of Jharsuguda town Unit-I

(Ekatali) in the district of Jharsuguda, was situated under a

Gountiahi village under un-divided district of Sambalpur. As

per the documents of administration, i.e., Wazib-ul-urj of said

village, Lambardar Gountia of the village was entitled to

reclaim and cultivate it and also to lease out the same to

rayats/tenants for reclamation and cultivation without

charging any Nazarana or Salami. The deceased plaintiff No.1,

namely, Brundabana Sharma requested the then Gountia,

namely, Gokulananda Patel @ Gountia to lease out the suit

land for reclamation and cultivation by his joint family

consisting of himself and his brother Banawarilal Sharma.

Accordingly, on 12th October, 1944, said Gokulananda

Gountia leased out the suit land to Brundabana Sharma. The

family of Brundabana Sharma reclaimed the suit land and

cultivated the same by raising different crops. They also

constructed a house thereon and paid land revenue to

Gountia. After abolition of the Gounti system with effect from

1st April, 1960, they continued to pay municipal taxes to

Jharsuguda Municipality. By operation of law, the plaintiff

No.1, namely, Brundabana Sharma became an occupancy

rayat. Tahasildar, Jharsuguda, after due enquiry and verifying

gounti patta granted in favour of Brundabana Sharma and

also taking into consideration the possession of plaintiffs,

settled the suit land in his favour in Revenue Case No.33/7-1

of 1962-63. The deceased plaintiff No.1 was also paying land

revenue from 1960 till 1991. In Major Settlement, the suit

land was recorded in the name of plaintiff No.1. There was a

partition of the suit land in the family of the deceased plaintiff

No.1, which was accepted by the Additional Tahasildar in OLR

Ceiling Case No.2 of 1978.

3. After 27 years of order of Tahasildar in Misc. Case

No.33/7-1 of 1962-63, the State of Odisha filed revision before

Member, Board of Revenue, Odisha, Cuttack under Section

38-B of the Odisha Estates Abolition Act, 1951 (for short, 'the

OEA Act') in OEA Revision Case No.37 of 1989 assailing order

dated 24th December, 1962 passed by the Tahasildar,

Jharsuguda in the aforesaid Misc. Case. The Member, Board

of Revenue, allowed the said revision holding that the order

passed by OEA Collector-cum-Tahasildar, Jharsuguda to be

null and void. Being aggrieved, the plaintiff No.1-Brundabana

Sharma filed OJC No.781 of 1993 before this Court. Taking

into consideration that the Revision was filed 27 years after

the land was settled in favour of the plaintiff No.1 and also

other legal grounds, this Court set aside the order passed by

learned Member, Board of Revenue. Assailing the said order

passed in OJC No.781 of 1993, the State of Odisha moved the

Hon'ble Supreme Court in SLP (Civil) No.15486 of 1993.

Hon'ble Supreme Court set aside the order of this Court

holding that Member, Board of Revenue has power to revise

the order after 27 years. The plaintiff Nos. 2 to 4 were not

parties to either the OEA Revision or in the writ petition before

this Court or SLP filed before the Hon'ble Supreme Court.

Hence, it is contended that the said order is not binding on

them. It is further contended that since possession of the

plaintiffs is open, continuous and for a period of more than

thirty years, they have perfected their title on the Schedule 'A'

land by adverse possession. Accordingly, the suit was filed

claiming right, title and interest over the suit land and for

confirmation of possession.

4. The defendants filed written statement contending

that Gokulananda Patel @ Gountia was neither Gountia nor

landlord of the village in question and had got no right to lease

out the 'Gochar' land. The alleged Patta dated 12th October,

1944 was forged one and the plaintiffs never possessed the

suit land. Learned Member, Board of Revenue in OEA Revision

Case No.37 of 1989 and the Hon'ble Supreme Court in SLP

Nos.2838-15486 of 1993 arising out of said Revision, have

categorically held that the Tahasildar had no power under

Section 8(1) of the OEA Act to record the name of Brundabana

Sharma in respect of the suit land. No sanction under Section

5(1) of the OEA Act being taken from the Member, Board of

Revenue for confirmation of the lease in respect of the suit

land the same is void. Further, the Hon'ble Supreme Court by

order dated 28th January, 1994 passed in Civil Appeal

Nos.827-828 of 1994 (arising out of SLP (Civil) Nos.2838 and

15486 of 1993, held that the lease of the land allegedly

granted by the intermediary in favour of Brundabana Sharma

prior to the date of vesting does not confer any tenancy right

in his favour and confirmation of tenancy right by the

Tahasildar without obtaining prior confirmation of Member,

Board of Revenue is without jurisdiction. Payment of land

revenue or rent being an administrative act does not confer

any right, title or interest in the suit land in favour of plaintiff

No.1. Hence, they pray for dismissal of the suit.

5. Learned Civil Judge, taking into consideration the

rival contentions of the parties, framed as many as 19 issues

for adjudication of the suit, which are as follows:-

1. Whether the lease patta granted by Gokulananda Patel in the year 1944 is a valid one?

2. Whether Gokulananda Patel has right to grant lease patta?

3. Whether Gokulananda Patel was the Lambardar Gountia of village Ekatali?

4. Whether Brundabana Sharma has been possessing on the strength of patta dated 12.10.44?

5. Whether Burndaban Sharma had reclaimed the land?

6. Whether the house was constructed by the plaintiff?

7. Whether the plaintiffs have possessed the house?

8. Whether the plaintiffs became rayat under the Government automatically?

9. Whether the payment of malgujari to Gokulanda Patel or anybody else confer any title on Brundabana Sharma or any of his family members?

10. Whether the judgment of the Hon'ble Supreme Court passed in Civil Appeal No.827-28 of 1994 arising out of SLP (c) No.2838 and 15486 of 1993 operates as res-judicata in this world?

11. Whether the plaintiffs have been possessing the suit land from 1944 till now as occupancy rayat and also adversely against the entire world?

12. Whether the plaintiffs have perfected their title over the suit land more than 30 years adverse possession?

13. Whether by paying the land revenue will confer any right?

14. Whether the judgment of the Hon'ble Supreme Court of India is binding on all the plaintiffs?

15. Whether there is any cause of action for this suit?

16. Whether the plaintiffs are entitled to get any relief?

17. Whether the suit is maintainable?

18. To what relief the plaintiffs are entitled to, if any?

19. Whether the valuation of the suit land is Rs.1,05,000/-

(Rupees one lac and five thousand) only?

6. Learned Civil Judge answering all the issues

against the plaintiffs, dismissed the suit vide judgment dated

1st February, 2014 and decree dated 24th February, 2014.

During pendency of the suit, plaintiff No.1-Brundabana

Sharma died and was substituted by his legal heirs as

plaintiffs Nos.1(a) to 1(g). Likewise, plaintiff No.2 also died and

substituted by his legal heirs plaintiff Nos.2(a) to 2(g).

6.1 Assailing the judgment and decree passed in the

suit, the plaintiffs preferred RFA No.07 of 2014, which was

dismissed vide judgment and decree dated 16th January, 2018

passed by learned Additional District Judge, Jharsuguda.

Being aggrieved by the aforesaid judgment and decree, the

plaintiffs have preferred this Second Appeal. Initially, the

appellants in the memorandum of appeal proposed to frame

the following questions of law for consideration.

(i) Whether the learned Original Court and the learned First Appellate Court committed manifest illegality in

mechanically deciding the issues framed in the suit in view of the judgment under Exhibit C and without any discussion or reliance placed on the documentary evidence on record in view of the fact that Exhibit C is a judgment from summary proceeding questioning the validity of quasi-judicial order of the which is not binding on the learned original Court which was bound to decide right title and interest of the plaintiffs on the basis of evidence adduced by parties?

(ii) Whether the plaintiffs who are all the representatives of a Hindu undivided joint family and enjoying joint tenancy and joint possession as yet (for the want of partition) bound by the judgment under Exhibit C where the other branches of the common ancestor of Brundabana Sharma were admittedly not parties and Brundabana Sharma was admittedly not a karta of the joint family?

(iii) Whether the plaintiffs have perfected their title of Adverse Possession by possessing the suit land for 1944 to 1995 even till date?

Subsequently, during course of argument, Mr. Mishra, learned

Senior Advocate prays for consideration of following

substantial questions of law.

Whether the Courts below have failed to take judicial notice of the conclusion of the Supreme Court judgment vide Exhibit 'C' that the possession of Brundabana Sharma is illegal and he was a wrongful and illegal occupant of the Government land, which otherwise justifies the claim of the plaintiff to have acquired the right, title and interest by way of adverse possession in view of their uninterrupted possession for more than the statutory period over the suit land from 12.10.1944 till date against the State Government on the basis of a void transaction?

7. It is the submission of Mr. Mishra, learned Senior

Advocate that in view of the verdict of Hon'ble Supreme Court

vide Ext-'C', the possession of Brundabana Sharma over the

suit land becomes illegal, which otherwise justify the claim of

the plaintiffs to have acquired right, title and interest by way

of adverse possession in view of their open and un-interpreted

possession for more than the statutory period with effect from

12th October, 1944 till date.

8. Taking into consideration the averments made in

the plaint as well as written notes of submissions and

scrutinising the materials on record, it can be safely said that

the claim of the plaintiffs rests on the Patta granted by

Gokulananda stated to be the erstwhile Gountia of the village

in favour of Brundabana Sharma (plaintiff No.1) on 12th

October, 1944. Plaintiff Nos.2 to 4 claimed right, title and

interest over a portion of the suit land on the basis of either

partition or gift made in their favour from out of the suit land

allegedly leased out in favour of said Brundabana Sharma.

Hon'ble Supreme Court in Civil Appeal Nos.827-828 of 1994

(State of Orissa and others -v- Brundabana Sharma and

another, reported in 1995 Supp (3) SCC 249) held as follows:

"19. So, we hold that the High Court is not right or justified in opining that the exercise of the power under Section 38-B is not warranted. It committed illegality in quashing the order of the Board of Revenue. The order of the High Court is set aside. The order of the Board of Revenue is restored. Consequently we hold that the Government, being the owner, need not acquire its own land and need not pay compensation to an illegal or wrongful occupant of the Government land. The direction

or mandamus to acquire the land and to pay the compensation to the respondent is set aside.

20. The appeals are accordingly allowed. But in the circumstances, the parties are directed to bear their own costs."

9. Thus, in view of the findings of the Hon'ble

Supreme Court in Brundabana Sharma (supra), the claim of

title by the plaintiffs over the suit land as occupancy rayats, is

no more available to be raised in a subsequent suit.

10. The next question that remains to be adjudicated

is as to whether the claim of plaintiffs to have acquired title by

adverse possession can be adjudicated in this appeal as a

substantial question of law.

11. Mr. Mishra, learned Senior Advocate appearing on

behalf of the plaintiffs/appellants reiterating the averments

made in the plaint, strenuously argued, when the Hon'ble

Supreme Court had declared the occupation of the plaintiffs to

be illegal and wrongful, their possession becomes adverse from

the date of their initial possession, i.e., 12th October, 1944. In

support of his case, he relied upon the decision in the case of

Collector of Bombay Vs. Municipal Corporation of the City

of Bombay and others, reported in AIR 1951 SC 469, in

paragraph-11 of which it is held as under:-

"11........ Both parties acted on the basis of that Resolution and the predecessor in title of the respondent Corporation went into possession of the land in question pursuant to the Government Resolution of 1865 and, acting upon the said Resolution and the terms contained therein, the respondent Corporation and its predecessor in title spent considerable sums of money in leveling the site and erecting and maintaining the market buildings and have been in possession of the land for over 70 years. What, in the circumstances was the legal position of the respondent Corporation and its predecessor in title in relation to the land in question? They were in possession of the land to which they had no legal title at all. Therefore, the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant. This possession has continued openly, as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity free from rent but only for the purposes of a market in terms of the Government Resolution of 1865. The immunity from the liability to pay rent is just as much an integral part or an inserverable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose. There is no question of acquisition by adverse possession of the Government prerogative right to levy assessment. What the respondent Corporation has acquired is the legal right to hold the land in perpetuity free of rent for the specific purpose of erecting and maintaining a market upon the terms of the Government Resolution as it a legal grant had been made to it........"

(emphasis supplied)

He, therefore, submits that since the initial entry of the

plaintiff No.1 to the suit land was not legal, the possession

becomes adverse to the true owner, i.e., Government of

Odisha. The plaintiffs are in possession of the suit land till

date. As such, they have perfected their title by adverse

possession. He further relied upon the decision in the case of

the State of West Bengal Vs. Dalhousie Institute Society,

reported in (1970) 3 SCC 802, paragraphs-16 and 17 of

which are relevant for discussion, which are as follows:-

"16. There is no material placed before us to show that the grant has been made in the manner required by law though as a fact a grant of the site has been made in favour of the Institute. The evidence relied on by the Special Land Acquisition Judge and the High Court also clearly establishes that the respondent has been in open, continuous and uninterrupted possession and enjoyment of the sit for over 60 years. In this respect the material documentary evidence referred to by the High Court clearly establishes that the respondent has been treated as owner of the site not only by the Corporation, but also by the Government. The possession of the respondent must have been on the basis of the grant made by the Government, which, no doubt, is invalid in law. As to what exactly is the legal effect of such possession has been considered by this Court in Collector of Bombay v. Municipal Corporation of the City of Bombay, 1952 SCR 43 : AIR 1951 SC 469 as follows:......

17. The above extract establishes that a person in such possession clearly acquires title by adverse possession. In the case before us there are concurrent findings recorded by the High Court and Special Land Acquisition Judge in favour of the respondent on this point and we agree with those findings."

(emphasis supplied)

He, therefore, submitted that the plaintiffs have clearly

acquired title over the suit land by adverse possession. It is his

submission that in addition to the claim of the title by the

plaintiffs as occupancy rayats, there is no bar under law to

claim title by adverse possession. Hence, he prays for framing

the aforesaid question(s) of law for adjudication of the appeal.

12. In order to take a decision with regard to framing

of substantial question of law on the issue of adverse

possession, this Court took assistance of Miss Samapika

Mishra, learned Additional Standing Counsel, who also

represents the defendant-State in this appeal.

13. Miss Mishra, learned Additional Standing Counsel

submitted that the plaintiffs have all throughout in the plaint

have contended that they have acquired title over the suit land

as occupancy rayats. An occupancy right over the suit land

cannot be acquired by adverse possession as held by this

Court in the case of Champa Bati Bewa @ Kabi and others

Vs. Kanhu Mallik and others, reported in Vol.33 (1991)

O.J.D. 154 (Civil), which is as follows:-

"9. The learned lower appellate court has held that defendant No.1 acquired occupancy right by adverse possession. The finding is against law because occupancy right cannot be acquired by adverse possession. It was alternatively held that defendant No.1 being settled raiyat of the village acquired occupancy right under Sections 24 and 25 read with Section 23 of the Orissa Tenancy Act by being in possession for more than 25 years. There is no pleading to that effect. Hence, the finding of the lower appellate court that defendant No.1 acquired occupancy right cannot be sustained. In

Lachmllal and Ganesh Chamar, AIR 1932 Patna 259, it has been held that status of a tenant on notice to quit is that of a trespasser."

13.1 It is her submission that issue of adverse

possession is based on the principle of nec vi nec clam nec

precario. Therefore, the claim of right over the suit land as

occupancy rayat and the claim of title by adverse possession

are mutually destructive and hence not permissible under law.

In support of her submission, she relied upon the case of

Praful Manohar Rele -v- Krishnabai Narayan Ghosalkar

and others, reported in (2014) 11 SCC 316, in para-10 of

which it is held as under:-

"10. Significantly, the decision rendered by the High Court rests entirely on the fourth question extracted above. The High Court has taken the view that while the plaintiff could indeed seeks relief in the alternative, the contentions raised by him were not in the alternative but contradictory, hence, could not be allowed to be urged. The High Court found that the plaintiff's case that the defendant was a gratuitous licensee was incompatible with the plea that he was a tenant and, therefore, could be evicted under the Rent Act. The High Court observed:

"It is now well settled that a plaintiff may seek reliefs in the alternative but in fact the pleadings are mutually opposite, such pleas cannot be raised by the plaintiff. There is an essential difference between contradictory pleas and alternative pleas. When the plaintiff claims relief in the alternative, the cause of action for the reliefs claimed is the same. However, when contradictory pleas are raised, such as in the present case, the foundation for the contradictory pleas is not the same. When the plaintiff proceeds on the footing that the defendant is a gratuitous licensee, he would

have to establish that no rent or consideration was paid for the premises. Whereas, if he seeks to evict the defendant under the Rent Act, the plaintiff accepts that the defendant is in possession of the premises as a tenant and liable to pay rent. Thus, the issue whether rent is being paid becomes fundamental to the decision. Therefore, in my opinion, ,the pleas that the defendant is occupying the suit premises gratuitously is not compatible with the plea that the defendant is a tenant and therefore can be evicted under the Rent Act."

(emphasis supplied)

She, therefore, submitted that the foundations of both the

pleas taken by the plaintiffs being different and opposite to

each other, are not permissible under law to be raised. She

further submitted that the plaintiffs in order to claim title by

adverse possession have to comply with the requirement of

law as laid down in the case of Karnataka Board of Wakf -v-

Government of India and others, reported in 2004 (10) SCC

779, in paragraph-11 of which it is held as under:-

"11. In the eye of the law an owner would be deemed to be possession of a property so long as there is not 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 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. (See S.M. Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayapa v. State of Karnataka). 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 not equities in his favour. Since he is trying to defeat the rights of the truer owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession [Mahesh Chand Sharma (Dt.) v. Raj Kumar Sharma]."

(emphasis supplied)

14. Thus, party seeking title by adverse possession

must specifically plead the date of entry into possession and

on which date his possession, if any, becomes adverse to the

true owner. She further relied upon the decision in the case of

Ganesh Shankar Shukla (since dead) through L.Rs. -v-

State of Orissa & another, reported in 2017 SCC On Line

Ori 714 and submitted that the issue of adverse possession is

a mixed question of facts and law. Since the learned trial

Court as well as the First Appellate Court came to a

conclusion that the plaintiffs have not acquired any title by

adverse possession, the same is not open to be raised in this

Second Appeal. She, therefore, prayed for dismissal of the

appeal as it involves no question of law much less any

substantial question of law.

15. Heard learned counsel for the parties at length and

perused the averments made in the plaint. Undisputedly, the

plaintiffs have claimed right, title and interest over the suit

land as occupancy rayats. All throughout, they have tried to

assert their right through lease deed dated 12th October, 1944.

At no place, in the body of the plaint, they have accepted the

Government to be the true owner of the suit land. In order to

establish the claim of title through adverse possession, the

basic requirement is to accept the title of the true owner,

namely, the Government of Odisha against whom they claim

adverse possession. From the pleadings in the plaint, it is also

apparent that the plaintiffs claim their title as occupancy

rayats. Further, they claim title by adverse possession on the

plea that their possession is open and continuous for more

than thirty years. The edifice of claim of title by adverse

possession cannot stand on the foundation of denying the title

of the true owner. The plaint must contain specific pleadings

of adverse possession satisfying the requirements as set out in

Karnataka Board of Waqf (supra), which is conspicuously

absent in the pleadings of the plaint. Claiming title over the

suit land on the basis of adverse possession, is based on the

principle "nec vi, nec clam, nec precario". Thus, mere pleadings

of open, continuous and long possession or enjoyment of the

land without a specific assertion as to when the plaintiffs

entered into possession and when the same became adverse to

the true owner, will not by itself be sufficient to claim title by

adverse possession.

16. Further, relief claimed in the plant is not clear as

to whether the plaintiffs claim right, title and interest over the

suit land as occupancy rayats or by adverse possession.

17. It is held by this Court in the case of Champa

Bati Bewa (supra), an occupancy right cannot be claimed by

adverse possession. It necessarily infers that the requirements

for claim of title as an occupancy rayat and that of adverse

possession are not one and the same and in fact are mutually

opposite. Thus, in view of the ratio in the case of Praful

Manohar Rele (supra), the claim of title by adverse

possession cannot be raised as an alternative plea of

occupancy rayat.

18. Mr. Mishra, learned Senior Advocate, in course of

hearing, submitted that although issue No.12 has been framed

with regard to the claim of the of title by adverse possession by

the plaintiffs, but learned first Appellate Court has neither

dealt with nor recorded any finding on the same, which itself

is a matter for consideration in the Second Appeal. In view of

the discussion made above, when this Court has come to a

conclusion that plea of adverse possession is not available to

be raised by the plaintiffs, the contention of Mr. Mishra,

learned Senior Advocate loses its relevancy for consideration.

19. Taking into consideration the facts and

circumstances stated above, I am of the considered opinion

that this Appeal involves no substantial question of law for

adjudication. Accordingly, the same stands dismissed.

Photocopies of the LCR received by this Court be sent back immediately.

.................................

K.R.MOHAPATRA, J.

Orissa High Court, Cuttack Dated the 6th day of April, 2021/ss/bct