Orissa High Court
Bimalendu Sahu (Since Dead) By vs State Of Odisha & Another on 8 January, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.272 of 2022
In the matter of an Appeal under Section 100 of the Code of Civil
Procedure, 1908 assailing the judgment & decree dated 16th July,
2022 and 25th July, 2022 respectively passed by the learned
District Judge, Ganjam in R.F.A. No.121 of 2016 confirming the
judgment & decree dated 15th November, 2016 & 19th November,
2016 respectively passed by the learned Civil Judge (Junior
Division), Berhampur in C.S. No.18 of 2011.
----
Bimalendu Sahu (Since Dead) by .... Appellants
his LRs, namely, Smt. Kuntala
Kumari Sahu & Others
-versus-
State of Odisha & Another .... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellants - Mr.Sanjay Ku. Pradhan and
Mr.G.K. Sundaray
(Advocates)
For Respondent - Mr.G.N.Rout,
Additional Standing Counsel
CORAM:
MR. JUSTICE D.DASH
Date of Hearing : 02.01.2024 : Date of Judgment :08.01.2024
D.Dash,J. The Appellants, by filing this Appeal under Section 100 of
the Code of Civil Procedure, 1908 (for short, 'the Code'), have the
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judgment & decree dated 16th July, 2022 and 25th July, 2022
respectively passed by the learned District Judge, Ganjam in
R.F.A. No.121 of 2016.
One Bimalendu Sahu, as the Plaintiff, had filed C.S. No.18
of 2011 in the Court of the learned Civil Judge, Junior Division,
Berhampur seeking the declaration of his right, title, interest and
possession over the suit land by way of adverse possession with
other reliefs arraigning the Respondents (State and its
functionaries) as the Defendants.
During pendency of the said suit, Bimalendu, having died,
his legal representatives (present appellants), being substituted as
the Plaintiffs, have prosecuted the suit.
The Trial Court, having dismissed the suit, these
Appellants, as the unsuccessful Plaintiffs, had carried the Appeal
under Section 96 of the Code, which has been dismissed.
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. Plaintiffs' Case:-
One Ghani Shariff had been permitted to cultivate the land
measuring Ac.1.06 cents under Survey No.182/2 of Village-
Bhapur for a period of thirty years with effect from 01.01.1946 by
the State under Scheme, floated in the name and style of "Grow
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More Food". The lease was further extended and accordingly,
Ghani Shariff continued to cultivate the land under his
possession. He died in the year 1965 and thereafter, his son,
namely, Gafffar Shariff and widow Amina Bibi continued to
possess the same with their other lands. In the year 1963, the
Tahsildar, Berhampur inspected the land and submitted a report
to the effect that Ghani Shariff was in possession of Ac.1.70
decimals as against Ac.1.06 cents, which had been granted to him
on lease. No objection was granted for assigning the land under
cultivation of Ghani Shariff, who was found to be a poor landless
Ex-Military personnel. The Tahasildar, Berhampur recommended
the same vide notification dated 30.06.1954. However, no action
was taken on the said report of the Tahasildar despite several
approaches being made by Ghani Shariff and his successors.
Finally, the Revenue Divisional Commissioner, Southern
Division, Berhampur, in M.C. No.6 of 1967, considered the
application of Ghaffar Shariff and directed that the suit land
under Survey No.182/2 be assigned to him without charging any
salami. This was ordered on 04.10.1976. However, in the
meantime, proceeding under the Orissa Prevention of Land
Encroachment Act, 1954 (for shot, 'O.P.L.E. Act') was initiated
against Amina Bibi, wife of Ghani Shariff which was numbered
as Land Encroachment Case No.96 of 1976. In the said
proceeding, the Tahasildar, Berhampur, by order dated
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14.05.1983, took a view that the case was not maintainable as he
lacks the competency to decide the issue as to acquisition of title
over the suit land by way adverse possession. He, therefore,
sought for instruction from the Collector, Ganjam, who
recommended to the R.D.C, in his letter dated 6.6.1967 to examine
the matter and move the Government in the Department of
Revenue with for onward communication of necessary orders as
to the settlement of the land in favour of Amina Bibi and others.
When the matter stood thus, the Tahasildar, Berhampur again
initiated Encroachment Case No.233 of 1988 against the original
Plaintiff and other purchasers in the said layout and ordered for
their eviction. Then, the original vendors of the Plaintiff with
other filed Appeals before the S.D.O., Berhampur, which were
dismissed. Revisions, being carried before the A.D.M., Ganjam at
Chatrapur, the orders passed by the Authorities below were set
aside and the matters were remitted to the Tahasildar for taking
steps for settlement of the land in favour of those persons. In the
meantime, the R.D.C., initiated suo motu proceeding and ordered
for eviction of Amina Bibi from the land. Then, Amina Bibi and
others challenged the said order of R.D.C. by filing Writ Petition
before this Court, which was numbered as OJC No.6633 of 1993.
Similarly, other purchasers preferred Writ Petition, i.e., OJC
No.6259 of 1993. This Court, by a common order dated
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19.01.1996, allowed this Writ Petitions and directed them to place
their dispute before the Competent Civil Court for redressal.
It is the further case of the Plaintiffs that Amina Bibi, being
in need of money, sold the land through her Power of Attorney,
namely, Debendranath Panigrahi and the Plaintiff purchased the
suit land from one Kumari Devi Sahu on 16.04.1994, who had
purchased the same from Amina Bibi through her Power of
Attorney holder Debendranath Panigrahi in the year 1984 under a
registered sale deed. It is stated that Kumari Devi Sahu, being
delivered with the possession of the suit land by Amina Bibi
through her Power of Attorney holder, was in possession and on
delivery of possession of the suit land by Kumari Devi to the
Plaintiff when he purchased the suit land, came to his halds. It is
further stated that the Plaintiff has also purchased lands from one
Bibhuti Bhusan Sahu by registered sale deed dated 08.10.2010 and
thus has been enjoying the suit land as its owner as like his
vendors as before.
4. The Defendants, in their written statement, while traversing
the plaint averments, have denied the claim of the Plaintiff to
have perfected the right, title and interest over the suit land by
virtue of adverse possession and their right to possess the same
as such.
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5. On the above rival pleadings, the Trial Court, having
framed as many as four issues, sat over the decide issue no.III,
which concerns with the claim of the Plaintiffs as regards their
acquisition of right, title, interest and possession over the suit
land by virtue of adverse possession.
On analysis of the evidence and their evaluation; testing
those in the touch stone of the pleadings, the Trial Court has
answered the said issue against the Plaintiffs, which has
practically to the dismissal of the suit.
The Plaintiffs, having carried the First Appeal under section
96 of the Code, have failed in their attempt to get that finding
reversed in obtaining the decree in the suit, as prayed for.
Hence, the present Second Appeal is at the instance of the
Plaintiffs, who have been unsuccessful in both the Courts below.
6. The Appeal has been admitted to answer the following
substantial question of law:-
"Whether the Courts below are right in holding that the
Plaintiffs have failed to establish their case of
acquisition of right, title, interest and possession over
the suit land by way of adverse possession?"
7. Mr.S.K.Pradhan, learned counsel for the Appellants
(Plaintiffs) submitted that as admittedly the suit land was in
possession of the vendors of the original Plaintiff and before that,
with the vendor's vendor of the original Plaintiff, that having so
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continued in the hands of the Plaintiff, the Courts below ought to
have applied the principle of tacking of possession and answered
the issue in favour of the Plaintiff. He further submitted that with
the overwhelming evidence on record, the possession of the suit
land by the original Plaintiff and prior to that, by his vendor and
before that by his vendor's vendor stretching over a long period,
when such provision was open, peaceful and continuous without
any interruption from any quarters holding the title and denying
the title of the State; the Courts below are not at all right in
answering that crucial issue in the negative against the Plaintiffs.
8. Mr. G.N. Rout, learned Additional Standing Counsel
submitted all in favour of the findings returned by the Courts
below. He submitted that on the basis of the evidence in support
of the Plaintiffs case as laid in the plaint; the Courts below have
rightly dismissed the Appeal.
9. Keeping in view the submissions made, I have carefully
read the judgments passed by the Courts below. I have also gone
through the rival pleadings and the evidence both oral and
documentary let in by the parties, as placed.
10. The Plaintiff, in Paragraph-2 of the plaint, has stated that
the proposal for settlement of land was sent to the S.D.O.,
Berhampur vide letter of the Tahasildar dated 10.02.1984 and the
Collector, in turn, made the recommendation to the R.D.C.,
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requesting him to examine the matter and move the Government
for further orders of settlement of the land in favour of Amina
Bibi and others. Having said this, it has been stated that the land
was sold by Amina Bibi to one Kumari Devi Sahu through her
Power of Attorney holder and it was under a registered sale deed,
which was followed by delivery of possession. It is also stated
that Kamari Devi Sahu, being in need of money, sold the land to
the Plaintiff by registered sale deed dated 16.04.1994 and
delivered the possession to her. The Plaintiff also claims to have
purchased a piece of land from Bibhuti Bhuysan Sahu by
registered sale deed 08.10.2010, who was in possession of the land
from 20.07.1984, having purchased the same from Amin.
11. With the above facts pleaded in the plaint that by the time,
Amina Bibi started selling the land, the position stood accepted
that the State was the owner of the suit land and Amina Bibi was
waiting for getting an order of settlement of the same in her
favour. So, the title over the said land in possession of Amina Bibi
was resting with the State and Amina Bibi was expecting an order
of settlement of those so as to be clothed with ownership over the
same. In that simple view of the matter, even if for a moment, it is
accepted that Amina Bibi had sold those lands, the so-called
purchasers were not conferred with any right, title and interest
over the suit land, which Amina Bibi even had not got by then.
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The possession of Amina Bibi, being at the mercy and pleasure of
the original owner-State; the Plaintiff coming to possess through
Amina Bibi would simply stand put him in that status as that of
Amina Bibi and can bring no promotion for him.
In that view of the matte, accepting the plaint case in
entirety, the foundational facts for establishment of a claim by
acquisition of title by way of adverse possession are found to be
wholly lacking therein and so also in evidence. Accordingly, the
substantial question of law is answered against the Plaintiffs.
12. Resultantly, the Appeal stands dismissed. There shall be no
order as to cost.
(D. Dash),
Judge
Basu
Designation: ASSISTANT REGISTRAR-CUM-SR.
Location: HIGH COURT OF ORISSA : CUTTACK
Date: 11-Jan-2024 12:37:58
