Orissa High Court
Smt. Swarnalata Tihadi vs State Of Odisha & Others on 1 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.283 of 2017
In the matter of an Appeal under Section 100 of the Code of Civil
Procedure assailing the judgment and decree dated 04.03.2017 & 17.03.2017
respectively passed by the learned District Judge, Ganjam, Berhampur in
R.F.A. No.73 of 2016 confirming the judgment and decree dated 21.07.2016
& 01.08.2016 respectively passed by the learned Civil Judge (Senior
Division), Berhampur in Civil Suit No.345 of 2012.
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Smt. Swarnalata Tihadi .... Appellant
-versus-
State of Odisha & Others .... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant- M/s. Biplab Mohanty, T.K. Pattnaik, A.
Patnaik, S. Patnaik, B.S. Rayguru, S.P.
Maharana, P.P. Mulia.
(Advocates)
For Respondents- Mr. G. N. Rout
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
DATE OF HEARING:10.10.2023 :: DATE OF JUDGMENT:01.11.2023
D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code
of Civil Procedure, 1908 (for short, 'the Code'), has assailed the judgment
and decree dated 04.03.2017 & 17.03.2017 respectively passed by the
learned District Judge, Ganjam, Berhampur in R.F.A. No.73 of 2016.
The Appellant, as the Plaintiff, had filed Civil Suit No.345 of 2012 in
the Court of Civil Judge, Senior Division, Berhampur arraigning the
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Respondent as the Defendant. The suit having been dismissed, the present
Appellant (Plaintiff) thus being non-suited had carried the Appeal under
section 96 of the Code. The same has also been dismissed. Hence the present
Second Appeal is at the instance of the Appellant (Plaintiff).
2. 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 suit.
3. Plaintiff's case is that her mother namely, Labangalata was in
possession of the suit property, which is a piece of Paramboke land for last
80 years which is much prior to the settlement operation. The father of the
Plaintiff had put fence around the whole area and constructed house threon
with AC Sheet roofing for residential purpose. When the matter stood thus,
the Defendant No.3 initiated an encroachment case vide Land Encroachment
Case No.59/75 against the mother of the Plaintiff resorting to the provision of
Odisha Prevention of Land Encroachment Act, 1972 (for short, 'OPLE Act')
in respect of the said portion of the land where the residential house stands.
The mother of the Plaintiff appeared in that proceeding. The Competent
Authority passed an order holding that the encroachment was not
objectionable and directed the local Revenue Inspector to make enquiry
regarding the position. The report was given that the area was surplus of the
road and not useful. It is stated that the Competent Authority then further
held that the mother of the Plaintiff had perfected her title over the suit land
by way of adverse possession and as such she is the owner.
Plaintiff claims that her mother has gifted away the property in her
favour by a registered deed of gift. It is further stated that Berhampur
Municipality alleging this Plaintiff's mother to be an encroacher and to have
made constructions unauthorizedly had attempted to take coercive action by
resorting to the provision of section 91 of the Odisha Development Authority
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Act, 1982 (for short, 'the OD Act'). So the Plaintiff's mother had filed a
Civil Suit No.5 of 2005. The suit was for declaration and injunction. It was
decreed by directing the Defendant No.4 not to demolish the suit house. No
Appeal was filed as against that judgment and decree. The Plaintiff,
therefore, filed present suit for declaration of her right, title, interest over the
property and other consequential reliefs.
4. The Defendants while traversing the plaint averments, have denied
most of them. It is stated that the suit land is a Government land and
classified as Rasta with the record position standing under Sarba Sadharana
Khata. They state that neither the Plaintiff nor her mother had ever possessed
the suit land. It is also stated that since it was a piece of Government land,
the illegal structures standing over that land have been demolished during the
widening of the National Highway.
5. On the above rival pleadings, the Trial Court having framed as many
as seven (7) issues has answered the crucial issue as regards the claim of the
perfection of title over the suit land by the plaintiff by way of adverse
possession in the negative. Having analyzed the evidence in great detail, the
Trial Court has found that the Plaintiff has failed to prove all the required
ingredients to get a favourable answer to that issue. Practically, this answer
has led to the dismissal of the suit. The Plaintiff being thus non-suited
having carried the Appeal, the very same finding on re-appreciation of the
evidence by the First Appellate Court has been rendered.
6. The Appeal has been admitted to answer the following substantial
questions of law.
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"Whether the Courts below are justified in holding that the
Plaintiff failed to prove hostile animus and as such are right in
bulldozing her claim of acquisition of title over the suit land?"
7. Learned Counsel for the Appellant submitted that the Courts below
are not at all right in concluding that the Plaintiff has failed to prove that the
possession of the suit land from the time of her mother and after her death by
her (Plaintiff) was not by way of exhibition of any hostile animus. He further
submitted that when in the earlier suit there was a direction not to demolish
the structure standing over the suit land and from that time onwards as the
Plaintiff is continuing to posses the suit land till its demolition by resorting
to illegal means by the Defendants in showing their right, the Courts below
ought to have presumed the hostile animus.
8. Learned Additional Standing Counsel submitted all in favour of the
concurrent findings returned by the Courts below. According to him, no such
perversity surfaces in the appreciation of evidence as have been made by the
Courts below as it is not available to be seen that the Courts below have
either omitted to take into account any important evidence on record or to
have considered certain materials which are extraneous to the evidence on
record so as to say that if those would have been correctly done, the finding
would have been otherwise.
9. Admittedly, there was an earlier suit i.e. C.S. No.5 of 2005 in respect
of the suit properties at the behest of the mother of the Plaintiff laying a
claim of declaration of right, title, interest to have been acquired by way of
adverse possession. That has not been so held. In that suit there was prayer
of direction to the Defendants for settlement of the suit land by virtue of long
possession. When such was the prayer, the title of the true owner stood
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admitted and even from that period onwards, even if one accept that the
Plaintiff is in possession of the suit property with the required ingredients;
one of those i.e. the prescribed period is not getting completed by the time of
institution of the suit. In that view of the matter, the answer to the substantial
question of law is returned in favour of confirmation of the judgments and
decrees passed by the Courts below in refusing to grant any relief to the
Plaintiff in respect of the suit as claimed.
10. Resultantly, the Appeal stands dismissed. There shall however be no
order as to cost.
(D. Dash),
Judge.
Gitanjali
Signature Not Verified
Digitally Signed
Signed by: GITANJALI NAYAK
Reason: Authentication
Location: OHC
Date: 02-Nov-2023 12:50:41
R.S.A. No.283 of 2017
