Orissa High Court
(In The Matter Of An Appeal Under ... vs Iswari Pradhan And Others on 13 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.107 of 2011
(In the matter of an appeal under Section 100 of the Code of Civil
Procedure, 1908)
Biranchi Banchhor .... Appellant
-versus-
Iswari Pradhan and others .... Respondents
Appeared in this case:-
For Appellant : Mr. N.C. Pati, Sr. Advocate, A.K.
Das, B. Das, M.R. Dash and B. Das
For Respondents : Mr. S. Pattnaik, learned Additional
Government Advocate (for the
Respondent No.3)
Appeared in this case:-
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 14.09.2023 / date of judgment :13.10.2023
A.C. Behera, J. This 2nd appeal has been preferred by the plaintiff in C.S. No.18 of
2008 against the confirming judgment passed in R.F.A. No.07 of 2009.
The appellant and the respondents of this appeal were the plaintiff
and defendants in C.S. No.18 of 2008 and they were the appellant and the
respondents respectively in the 1st appeal vide R.F.A. No.07 of 2009.
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2. The case of the plaintiff in short was that, the suit land described in
schedule-A being the Government land was lying vacant, to which,
he(plaintiff) possessed in the year 1975 and made the same fit for
cultivation and cultivated the same. He(plaintiff) has been possessing the
suit land continuously since the year 1975. But, the State (defendant
No.3) through its Tahasildar initiated a land Encroachment case against
him (plaintiff) in the year 1997 alleging his illegal and unauthorized
possession of the suit land. In that land encroachment case, fine was
imposed against him (plaintiff), to which, he (plaintiff) paid, but still
then, he (plaintiff) continued his possession on the suit land as before.
Subsequent thereto, in the year 2003, the State Government(defendant
no.3) through its Tahasildar initiated an another Land Encroachment
Case vide L.E. Case No.383 of 2003 against him (plaintiff) alleging
illegal possession of the plaintiff over the suit land, wherein fine was also
imposed and the plaintiff paid that fine to the Government and continued
his possession on the suit land as before. But, when in the year 2007, the
defendant Nos.1 and 2 created disturbances in his possession over the
suit land, a proceeding vide M.C. No.613 of 2007 under Section 144 of
the Cr.P.C. was initiated between them before the local Executive
Magistrate, Jharsuguda. In that proceeding under Section 144, Cr.P.C.,
1973, the learned Executive Magistrate passed on order restraining the
defendant Nos.1 and 2 from entering into the suit land for a period of two
months. Then again in the year 2008, the defendant Nos.1 and 2 tried to
dispossess the plaintiff from the suit land forcibly. So, he (plaintiff) filed
the suit vide C.S. No.18 of 2008 against the defendants including the
State of Orissa (defendant No.3) praying for injuncting the defendants
permanently from entering into the suit land and from creating any sort
of disturbance in his possession over the suit land. Because, he (plaintiff)
has been possessing the suit land for more than 30 years continuously
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and his possession has been recognized by the Tahasildar in L.E. Case
Nos. 54 of 1996-1997 and 383 of 2003 and as well as in the order passed
in a proceeding under Section 144, Cr.P.C. against the defendant Nos.1
and 2 by the Executive Magistrate in the year 2007, for which, he
(plaintiff) has become the owner of the suit land by possessioning the
same exclusively and continuously for more than 30 years.
The defendant Nos.1 and 2 filed their written statement jointly
denying the averments of the plaintiff made in his plaint and stated that,
they (defendant nos.1 and 2) are in possession over the suit land since
1999 and they are providing a portion of products thereof to the villagers
for the benefit of the village. For which, the plaintiff has no interest on
the suit land. Therefore, the suit of the plaintiff is liable to be dismissed.
The defendant No.3(State) filed written statement denying the
averments made by the plaintiff in his plaint by taking its stand that, the
KISAM of the suit land is "NALA" and absolutely the same belongs to
the Government. The RoR of the suit land is in the name of the
Government. Eviction orders have already been passed in L.E. Cases
against the plaintiff for his illegal and unauthorized possession of the suit
land with imposition of penalty against him. The plaintiff has paid such
penalty imposed against him in L.E. Cases. So, the plaintiff has no
interest in the suit land. Therefore, the suit of the plaintiff is liable to be
dismissed with costs.
3. Basing upon the aforesaid matters in controversies between the
parties as per their pleadings, altogether six numbers of issues were
framed by the learned trial court below and the said issues are:-
(i) Whether the suit is maintainable ?
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(ii) Whether the plaintiff has got any cause of action to file the
present suit?
(iii) Whether the suit is not properly valued and proper Court
fees has not been paid?
(iv) Whether the plaintiff is in possession over the suit land?
(v) Whether the plaintiff is entitled to get a decree of permanent
injunction against the defendants restraining them from
entering into the suit land or any portion thereof?
(vi) What other relief(s) the plaintiff is entitled for?
4. In that suit, the plaintiff examined two witnesses from his side
including him as P.W.1 and proved six documents on his behalf vide
Exts. 2 to 6 including the certified copies of the orders passed in L.E.
Cases against him, fine receipts paid by him and the order of the 144,
Cr.P.C. proceeding.
The defendant Nos.1 and 2 examined two witnesses from their side
including defendant No.1 as D.W.1 and relied upon several documents
vide Exts.B to E.
The defendant No.3(State) examined one witness from its side and
proved documents vide Exts. H to L.
5. After taking into account the pleadings and evidence of the parties,
the learned trial court passed the judgment and decree of the suit vide
C.S. No.18 of 2008 on 19.02.2009 and 04.03.2009 respectively
dismissing the suit of the plaintiff on contest against the defendants with
cost by answering all the issues except issue No.3 against the plaintiff
giving observations in the judgment while answering issue Nos.4 and 5
// 5 //
that, the suit land is Government land and the Government/State
(defendant no.3) is the owner of the same and he (plaintiff) is not in
lawful possession over the suit land according to his own admissions. For
which, he (plaintiff) is not entitled to get the decree of permanent
injunction in respect of the suit land against its true owner, i.e.,
Government/State.
6. On being dissatisfied with the above judgment and decree of the
dismissal of suit vide T.S. No.8 of 2018 of the plaintiff passed by the
learned trial court, he (plaintiff) challenged the same by preferring 1st
appeal vide R.F.A. No.7 of 2009 being the appellant against the
defendants by arraying them (defendants) as respondents.
The learned 1st appellate court dismissed the R.F.A. No.7 of 2009
of the plaintiff on contest concurring with the findings of the trial court.
Then the plaintiff preferred this 2nd appeal challenging the
judgment and decree of the learned courts below passed in C.S. No18 of
2008 and R.F.A. No.07 of 2009 respectively.
7. This 2nd appeal has been admitted formulating the substantial
question of law, i.e., "whether the findings of the learned courts below
negating the plaintiff's claim to be in possession of the suit land as a
result of non-consideration of evidence of P.Ws.1 and 2 and the contents
of Exts.2, 3 (series) 4 and 5 are sustainable under law?.
8. I have already heard from the learned counsel for the appellant and
learned Additional Government Advocate for the State(respondent no.3)
and also have perused the materials and evidence available in the record.
9. Ext.2 is the certified copy of the R.I. report in L.E. Case No.54 of
1996-1997. Exts.3 (series) are the fine receipts in respect of the fine paid
// 6 //
by the plaintiff as per the order passed in L.E. Case No.54 of 1996-1997.
Exts.4 is the fine receipt in respect of the fine paid by the plaintiff as per
the order passed in L.E. Case No.383 of 2003. Ext.5 is the xerox copy of
the order passed in CMC No.613 of 2007 under Section 144, Cr.P.C. by
the Executive Magistrate, Jharsuguda.
10. P.Ws.1 and 2 have adduced evidence about the ownership and
possession of the plaintiff (P.W.1) over the suit land on the basis of
eviction order passed against him (P.W.1) in the Land Encroachment
(L.E.) Cases and as well as the order passed under Section 144, Cr.P.C.
in CMC No.613 of 2007 in his favour and against defendant nos.1 and 2.
11. There is no material in the record on behalf of the plaintiff to show
that, he (plaintiff) has challenged the eviction orders regarding his
eviction from the suit land passed against him in L.E. Case No.54 of
1996-1997 and 383 of 2003 before appropriate forums. Accordingly, the
eviction orders passed against him (plaintiff) in L.E. Cases for his
eviction from the suit land have remained unchallenged.
12. It is the clarified propositions of law that, a person, who is paying
fine imposed in encroachment proceedings initiated by Government, the
said person cannot claim adverse possession on that land in respect of
which fine has been imposed against him for his illegal and unauthorized
encroachment to the same. Because, he paid the fine admitting his status
as that of a rank trespasser of the said land in question. So, the Act of
payment of fine itself shows the admission of title and lawful possession
of the true owner, i.e, Government on the suit land instead of objecting to
the intimation/result of the encroachment case. When a person will have
admitted to him as an encroacher of the Government land on payment of
fine as per the order passed against him in land encroachment case, he
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would have no locus standi to continue in possession thereof and seek
interim or final protection from the court.
13. In this suit at hand, the plaintiff has sought for the relief, i.e.,
permanent injunction against the defendants.
As per law, the relief of injunction is an equitable relief. Equitable
relief of injuction is not available to an encroacher. Even after passing of
an eviction order against a person in respect of any land, if, he possesses
that land, then he is to be treated as a trespasser of that land and his
possession thereon shall be treated as unlawful and wrongful.
14. A wrong doer is not entitled to take advantage of his own wrong.
When possession of a person is not valid or lawful, he is to be considered
as a trespasser. A person who demands an equitable relief, he must do or
show equity.
Injunction cannot be issued in favour of a trespasser, who gained
unlawful possession against true owner. That too, equitable relief of
injunction is not available to an encroacher.
15. An order passed in a proceeding under Section 144 of the Cr.P.C.,
1973 is purely administrative in nature. The same is not a judicial or
quasi-judicial order. The object of passing such order is to preserve
public peace and tranquility, because, the same is intended to meet the
above object. That order cannot be permanent or semi permanent. Order
under Section 144 of the Cr.P.C. should not be treated as evidence of
possession in a subsequent proceeding.
16. The position of law on the above aspects has already been clarified
in the ratio of the following decisions of the Apex Court and Hon'ble
Courts.
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(i) 2015(II) CLR--645 : Smt. Tribeni Biswal vrs. State of
Orissa and others.
"Whether a person paying fine in the encroachment proceeding
initiated by State Government, can claim adverse
possession?--No--He paid fine admitting his status as that of a
rank trespasser. The act of payment of fine shows the
admission of title of the true owner instead of objecting the
initiation of encroachment case."
(ii) 2017(II) CLR--84 : Sambhuram Mandal vrs. Collector,
Kendrapara and others. (para-10)
"Claim of Title--Payment of penalty in Encroachment
Case--The same is admission of title of the State--Possession
of plaintiff is of a rank trespasser."
(iii) 2017(II) CLR-87 : State of Orissa and others vrs.
Sibasankar Ray and another (Para-12)
"Title--Admission of title of Government by payment of rent
in encroachment case--In encroachment case, the plaintiffs
have paid rent and penalty. Thus the inescapable conclusion is
that, the plaintiffs admit the title of the Government."
(iv) 2021(4) CCC-222 (Raj.) : Subhash Sindhi Co-Operative
Housing Society Limited Through Yogesh Bhatnagar vrs.
Dr. A.K. Verma and another (Para-6 and 7).
"Injunction--Relief of injunction is an equitable relief."
(v) 2018(3) Civil Court Cases--558(Rajasthan) : Mangilal
vrs. Gram Panchayat Gotan.
// 9 //
"Specific Relief Act, 1963--Section-38--Injunction--
Encroachment--Equitable relief of injunction is not available
to an encroacher."
(vi) 2001(I) Civil Court Cases--297 (P&H) : Jagir Singh
vrs. Guru Nanak College and others.
"Specific Relief Act, 1963-Sections-37 and 38--Trespasseer--
Suit for injunction--If possession of plaintiff is of a trespasser,
he cannot get an injuction against the true owner in order to
perpetuate his own wrong."
(vii) 2018(2) Civil Court Cases-112 (P&H) : Smt. Urmila
Gupta vrs. Commissioner and 1995(I) Civil Court Cases
1 (S.C.) Premji Ratan Sey @ Shah and others vrs. Union
of India and others.
"Specific Relief Act, 1963--Section 38--Injunction cannot be
issued in favour of a Trespasser or a person, who gained
unlawful possession, as against the owner."
(viii) 2005(4)CCC-418(Ori): Smt. Laxmipriya Sahoo and
others vrs. State of Orissa and others(Para-10 and 11).
"Specific Relief Act, 1963--Section-41--Where plaintiff
petitioner was encroacher on Government land, he would not
have locus standi to continue in possession thereof and seek
interim protection from court."
(ix) 2000(I) Civil Court Cases--291 (Bombay) Vasudev Nene
vrs. Dattatraya Raghunath Jog.
// 10 //
"Specific Relief Act 1963--Section--37 and 38--To obtain
relief from the court to protect possession of the party, such
possession has to be lawful possession."
(x) 2019(I) Civil Court Cases-654 (Guj) : Hasmukhbhai
Kantibhai Bharvad vrs. Chanduhi Gabhaji Thakor.
"Specific Relief Act, 1963--Section-37 and 38--Suit for
injunction--Wrongful Possession--A person in wrongful
possession is not entitled to an injunction against rightful
owner."
(xi) 1993 (I) OLR-505 : Raghunath Prusty and others vrs.
Raghunath Baliarsingh.
"Specific Relief Act, 1963--Sections 36 and 38--A trespasser
cannot injuct a rightful owner."
(xii) 2001(3) Civil Court Cases-82(P&H) : Rajinder Kumar
Saini vrs. Municipal Committee, Hissar.
"Specific Relief Act, 1963--Sections--37 and 38--
Trespasseer--Public Property--possession of a trespasser,
howsoever long may be, cannot be allowed to be protected."
(xiii) AIR 1981(S.C.)-2198 : Gulam Abbas and others vrs.
State of U.P. and others (Para-32)
"Cr.P.C., 1973--Section-144--Order under Section 144
Cr.P.C. is administrative in nature and not judicial or quasi-
judicial. The object is to preserve public peace and tranquility."
(xiv) 1991(II) OLR-71 : Rabindranath Sahu vrs. Dayanidhi
Sahu and others
// 11 //
"Cr.P.C., 1973--Section-144--Order of Magistrate under
Section 144 Cr.P.C. is only a temporary measure in case of
emergency. Such order cannot be taken as evidence of
possession in a subsequent proceeding."
17. Here in this suit at hand, when, the plaintiff has not challenged the
order of eviction from the suit land passed against him in L.E. Case
No.54 of 1996-1997 and L.E. Case No.383 of 2003 in any forum and
when he (plaintiff) has admitted his status as that of a rank trespasser on
the suit land on payment of fine to the Government as per the fine
receipts vide Exts.2, 3(series) and 4 admitting the Government's title and
lawful possession over the suit land and when equitable relief of
injunction is not available to an encroacher of the suit land like plaintiff
and when as per law, a person who remains in wrongful possession over
the suit land is not entitled to injunction against the rightful manner and
when the order assed in a proceeding under Section 144, Cr.P.C. like
Ext.5 is neither a judicial nor a quasi-judicial order, and when an order
passed under Section 144, Cr.P.C. like Ext.5 cannot be treated as
evidence of possession in any subsequent proceedings, then at this
juncture, by applying the principles of law enunciated in the ratio of the
decisions referred to supra in para no-16 of this judgment, it cannot be
held that, the findings and observations made by the learned courts below
refusing the prayer of permanent injunction of the plaintiff were
erroneous. For which, in other words, it is held that, the findings and
observations made by the learned courts below in the judgment and
decree of the suit and as well as in 1st appeal dismissing the suit of the
plaintiff are not illegal in any manner.
18. When, as per the discussions and observations made above, the
impugned judgments and decrees of the leaned courts below are not
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illegal or erroneous in any manner, then at this juncture, the question of
interfering with the same through his 2nd appeal filed by the appellant
does not arise. Therefore, the appeal filed by the appellant must fail.
In the result, the 2nd appeal filed by the appellant is dismissed on
contest, but without cost.
The impugned judgment and decree passed in C.S. No.18 of 2008
and as well as in R.F.A. No.07 of 2009 by the leaned courts below are
hereby confirmed.
( A.C. Behera )
Judge
Orissa High Court, Cuttack
The 13th of October, 2023/ Jagabandhu, P.A.
Signature Not Verified
Digitally Signed
Signed by: JAGABANDHU BEHERA
Designation: Secretary-in-Charge
Reason: Authentication
Location: OHC, CUTTACK
Date: 13-Oct-2023 18:51:20
