Orissa High Court
Kuntala Samantasinghar And ... vs State Of Odisha And Another on 4 March, 2021
HIGH COURT OF ORISSA : CUTTACK
R.S.A. No.91 of 2019
In the matter of an appeal under section 100 of the Code of Civil
Procedure assailing the judgment and decree dated 24.12.2018 and
09.01.2019 respectively passed by the learned 3rd Additional District Judge,
Puri in R.F.A. No.44/24 of 2013/2011 confirming the judgment and decree
dated 28.01.2011 and 10.03.2011 respectively passed by the learned Civil
Judge, (Junior Division), Puri in T.S. No.187 of 1999
.........
Kuntala Samantasinghar and others ... Appellants.
-VERSUS-
State of Odisha and another ... Respondents.
Advocate(s) who appeared in this case by Hybrid Arrangement
(Virtual/Physical) Mode:-
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For appellants ... M/s.A.P.Bose, D.J.Sahoo,
S.K.Hota and A.Pattnaik
For respondents ... Mr.P.C.Das,
(Additional Standing Counsel)
.........
PRESENT:
THE HON'BLE MR. JUSTICE D.DASH
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Date of Reserve:25.02.2021 : Date of Judgment:04.03.2021
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D.Dash,J. The unsuccessful plaintiffs have filed this appeal under section
100 of the Code of Civil Procedure (for short, 'the Code') in assailing the
judgment and decree passed by the learned 3rd Additional District Judge, Puri
in RFA No.44/24 of 2013/2011 confirming the judgment and decree passed
by the learned Civil Judge (Junior Division) in T.S. No.187 of 1999.
2. For the sake of convenience and clarity; the parties hereinafter
have been referred to in the same rank as assigned to them in the original suit,
namely, the appellants as the plaintiff whereas the respondents as the
defendants.
3. The plaintiffs case, in short, is that they are the legal heirs and
successors of one Duryodhan Samantasinghar, who died on 01.05.1985. Said
Duryodhan was serving under the Odisha State Electricity Board at Puri. It is
stated that he, in the year, 1940 had entered upon the suit land which was then
lying fallow and standing recorded under Anabadi status. In or around the
year 1948-49 said Duryodhan raised structures over the suit land and
constructing residential house resided there with this family members.
It is the further case of the plaintiffs that during the settlement
operation of the year 1965, finding Duryodhan to be in possession over the
suit land, at every stage, orders were passed for recording of the land in his
name at its owner. However, at the time of final publication of the Record of
Right, Duryodhan's name stood deleted. Being aggrieved by the same,
Duryodhan had filed an appeal as provided under Orissa Survey Settlement
Act. Said attempt of Dyryodhan however proved futile and the move for
recording of the suit land in his name on the basis of possession failed. When
the matter stood thus, an encroachment case bearing No.15/70-70 was
initiated against said Duryodhan for his illegal and unauthorized occupation
of the property in suit. In that proceeding, he was imposed with the penalty
and demand was levied against him. He filed an appeal and having lost, in
that forum, had approached this Court for invoking of the jurisdiction under
Article 226 of the Constitution. This Court, in disposing that writ application,
directed Duryodhan to approach the Competent Authority of the State seeking
settlement of the suit land in his favour provided he stands so entitled within
the four corner of the said settlement provision as contained in section7 of the
Orissa Prevention of Land Encroachment Act. Abiding the above, Duryodhan
had approached the Competent Authority praying for grant of lease of the
land in suit. That move stood rejected. Thereafter when an attempt was made
for removal of the structures standing over the suit land and eviction of the
plaintiffs who continued to remain in possession of the land and occupation
of the house after Duryodhan; they once again had approached this Court by
initiating another proceeding under Article 226 of the Constitution which
stood numbered as OJC No.7458 of 1998. It is stated that the concerned
officials of the State, however, demolished asbestos roofed rooms standing
over the suit land in violation of the restraint order. So, a contempt
proceeding had also been initiated. Ultimately, it was said therein that
eviction of the plaintiffs from the suit land can only be made following due
procedure of law. This suit thereafter has came to be filed. The projected
basis for the reliefs claimed by the plaintiffs as to declaration of right, title,
interest and possession over the suit land is that of acquisition of right of
occupancy over the suit land through long standing possession and
construction of the residential house thereon and staying therein since the
time of Duryodhan, the ancestor of the plaintiffs and the continuation as such
at least till the year 1985 as also thereby acquisition of title by adverse
possession.
The defendants while traversing the plain averments besides
resisting the suit on some technical grounds, such as non-service of notice
under section 80 CPC, non-existence of any cause of action etc. have mainly
contested the suit by denying the claim of the plaintiffs as to acquisition of
right of occupancy and the right, title and interest over the suit land as said to
have been acquired by virtue of adverse possession. According to them, the
plaintiffs are mere trespassers for which the, encroachment proceedings had
been initiated and therein, the penalty being imposed for such illegal and
unauthorized act, the same has been duly paid. It is stated that pursuant to the
order passed in the encroachment proceeding, the predecessor-in-interest of
the plaintiffs, i.e., Duryodhan had been physically evicted from the suit land.
Placing the history touching upon the land, it is stated that this land under suit
was a piece of Government Khasmal land and it had been leased out to one
Renuka Bala Dutta in the year 1940 for a period of 30 years commencing
from 15.6.1940 vide order passed in Lease Case No.33,39 and 40. But for the
breach of the terms and conditions by said leassee, the lease stood cancelled
and thereafter it had been transferred in favour of the Supply and Transport
Department of the State way back in the year 1946. It is further stated that the
plaintiffs' prayer for settlement of the land in suit has been rightly rejected as
they do not come within the category of 'landless persons' as per the
provisions contained in the Act, Rules as well as the Guidelines issued by the
Government in that regard from time to time. It is also stated that their
income is also above the prescribed limit so as to be eligible to tender the
application for such settlement of land and as to their entitlement of the
benefit thereunder. Furthermore, it is said that since the suit land stands in an
important place of township of Puri and as the plaintiffs are mere trespassers;
their claim for settlement being devoid of merit has been rightly negated. The
defendants have thus prayed to non-suit the Plaintiffs.
4. The trial court, on the above rival pleadings, has framed as many
as eight issues; out of which the important one is Issue No.7, which reads as
under:-
"7.Whether the plaintiffs have preferred their title over the
suit land (which is a Government land) by possessing the
said land since more than 30 years from the time of their
ancestors without having any interruption and to the
knowledge the true owner, i.e., the State:"
5. Mr.A.P.Bose, learned Counsel for the Appellants (Plaintiffs),
placing the judgments passed by the Courts below and the evidence both oral
and documentary, let in by the Plaintiffs, submitted that the trial court as well
as the lower appellate court ought to have rendered the finding on the said
Issue No.7 in favour of the plaintiffs holding them to be having the right, title
and interest over the suit land by virtue adverse possession since the required
ingredients for the same, i.e, nec vi, nec clam and nec precario stand wholly
established through evidence upon the base of the pleadings in the plaint. He
further submitted that the courts below are not right in rendering the answer
on the said issue in the negative and against the plaintiffs and thus according
to him, the findings although concurrent suffer from the vice of perversity
inasmuch as the evidence let in by the parties have not been properly
appreciated in the touch stone of the rival pleadings. He, therefore, submitted
that the appeal be admitted on the following substantial question of law:-
" Whether the findings rendered by the courts below
against the case of the Plaintiffs in negating their
claim as to perfection of title in respect of the suit land
by adverse possession suffers from the vice of
perversity being the outcome of perverse appreciation
of evidence on record and based upon erroneous view
point of law with the departure from the established
and settled position of law holding the field?"
6. Mr.P.C.Das, learned Additional Standing Counsel for the State
at this stage entering appearance in assisting the Court submitted all in favour
of the concurrent findings rendered by the courts below. According to him,
the plaintiffs have failed to establish their claim of right, title and interest over
the suit land by adverse possession. He submitted that the plaintiffs having
time and again admitted the title of the State in so far as the suit land is
concerned and then having admitted their possession as that of trespassers,
i.e, illegal and unauthorized by paying the penalty without any reservation
whatsoever, have no case for being entitled to the reliefs as claimed in the
suit. He, thus submitted that no such substantial question of law arises for
admission of the appeal.
7. Keeping in view the rival submissions, in the backdrop of the
case and counter case of the parties, through their pleadings; it is seen that the
answer on the Issue No.7 stands crucial to the fate to the suit filed of the
plaintiffs against the State and others. The claim of the plaintiffs is that of
acquisition of title over the suit land by adverse possession since the time of
their predecessor-in-interest. The classical requirements of establishment of a
claim of this nature are:- nec vi, nec clam, nec precario which are required to
be pleaded in clear terms and proved through clear, cogent and acceptable
evidence. The burden of proof lies on the plaintiffs as they assert the same
banking upon the theory of acquisition of title by adverse possession. The
possession in such cases has to be in denial of the title of the owner exhibiting
hostility and to their knowledge all along in open, and peaceful manner
maintaining the continuity as such for upward of the period prescribed.
The present suit has been filed in the year 1999. It appears from
the evidence on record that on 15.03.1999, the Collector, Puri has disposed of
the lease application filed by the plaintiffs rejecting their prayer for grant of
lease of the land in suit, ad measuring Ac.0.112 decimals. The ground for
negating the prayer is that they do not fall within the category as provided
under the Orissa Government Land Settlement Act, Rules and the Guidelines
issued by the State in that regard from time to time so as to be entitled to the
said benefit. Having said so, it has been further observed that the plaintiffs
have been physically ousted from the suit land on 03.06.1998, which P.W.2, a
good friend of the predecessor-in-interest of the Plaintiff namely, Duryodhan
has so deposed on oath in stating that in total, four rooms were standing on
the land, i.e, two asbestos roofed houses and two rooms having thatched roofs
and those had been demolished by the Officials of the State. This has again
been said by the witnesses examined for the side of the plaintiff, i.e., P.Ws.3
and 5.
8. The very act of filing an application by the plaintiffs for grant of
lease of the suit land in their favour amounts to admission of the title of the
defendants in so far as the suit land is concerned in clear terms. The plaintiffs
having prayed to be placed in the status of the lessees in respect of the suit
land under the lessor, the Defendant No.1, under no circumstance can fall
back in projecting a claim of acquisition of title over the suit land by adverse
possession or even acquisition of occupancy right thereon which too are
mutually destructive. Whatever might have been the state of affairs with
regard to the possession of the suit land etc. and the basis thereof prior to
filing of the application; those now pale into insignificance and are invisible
in the eye of law. The courts cannot at all take cognizance of those and those
are of no avail/benefit to the plaintiffs in support of their claim as projected in
this suit. Here, again as to the situation that there has been payment of penalty
as had been imposed in an encroachment proceeding, the plaintiffs have
nowhere given any explanation on that score in the plaint. The proceeding for
eviction of the trespasser/s from the land which stood recorded in the name of
the State having been initiated, the Plaintiffs have not resisted therein by
asserting their own claim of right, title and possession. Rather, they have
chosen to pay the penalty imposed, without any reservation whatsoever,
thereby not only that they have admitted the title of the State in respect of the
suit land but also their possession as of rank trespassers remaining at the
mercy of the Defendant-owner liable to be evicted at any time following due
process of law. Thus, the admitted facts and circumstances emerging from
the evidence on record being taken into account, the claims of the Plaintiffs
fall flat on the ground.
In view of the aforesaid, this Court finds that the Courts below
having answered the Issue No.7 against the Plaintiffs in negating their claim
of right, title, interest and possession over the suit land did commit no error
either on facts or law.
9. For all the aforesaid, the submission of the learned Counsel for
the Appellants (Plaintiffs) that in this case there surfaces the substantial
question of law as at paragraph-4 of this judgment cannot be countenanced
with.
10. In the wake of aforesaid, the appeal does not merit admission
and accordingly, stands dismissed. In the peculiar facts and circumstances,
however, there shall be no order as to costs.
..........................
D. Dash, J.
Orissa High Court, Cuttack
Dated the 4th day of March, 2021/ .
B.Nayak
