Orissa High Court
Sitarani Das And Anr vs State Of Odisha & Others on 25 February, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 505 of 2024
Application under Articles 226 & 227 of Constitution of India.
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Sitarani Das and Anr. ...... Appellants
- Versus -
State of Odisha & Others ....... Respondents
Advocate(s) appeared in this case:-
________________________________________________________
For Petitioner : Mr. Banshidhar Baug, Sr. Advocate
with M/s. M.R. Baug, G.R. Sahoo, H. Sahu,
T. Patra & S. Patra, Advocates
For Opp. Parties : None
_________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
th
25 February, 2025
SASHIKANTA MISHRA, J.
This appeal, filed by the plaintiffs before the trial Court, is
directed against the judgment passed by the learned District
Judge, Angul on 30.10.2024 followed by decree in RFA No.
26/2023 whereby the judgment passed by learned Civil Judge
(Sr. Division), Angul on 23.09.2023 followed by decree in C.S.
No. 157 of 2013 was confirmed.
2. The suit was filed by the plaintiffs for declaration of
right, title and interest of plaintiff No.2 over the suit land by
way of adverse possession or in the alternative, for a decree
directing the defendants to settle the suit land in favour of
plaintiff No.1 along with permanent injunction.
3. The plaintiffs' case is that the suit land stands
covered under Khata No.1 of Mouza-Angul Town appertaining
to Plot No.119 measuring Ac.0.10 dec, out of total area of
Ac.1.345 dec. The plaintiffs claim to be the original residents of
Sakosingha, Angul but since 01.05.1955, the plaintiff No.1 and
since 13.06.1973, the plaintiff No.2 have been possessing the
suit land. Further, such possession is adverse to the true
owner, which is the State of Odisha. Such possession was
open, continuous and hostile to the true owner. As such, the
plaintiffs claim to have perfected their right, title and interest
over the property since 01.05.1985. On 05.03.1956 the then
Tahasildar, Angul had gone to the suit land and asked the
plaintiff No.2 to vacate the suit land by removing his
construction thereof but his father violently threatened the
Tahasildar and his staff with dire consequences, if they tried to
evict him. Since then, no other steps were taken by the State or
its functionaries to reclaim the land from the plaintiffs.
Further, the suit land has been assessed to holding tax by
Angul Municipality and electricity connection has been
provided. On 16.08.2012, the plaintiff No.1 was asked by the
Tahasildar, Angul to apply afresh for grant of lease of the suit
land in her favour, for which she submitted application on
22.08.2012. However, on 11.01.2013, the plaintiff was
informed to vacate the suit land as lease could not be granted
in her favour. Hence, the suit.
4. The defendants, all of whom are State functionaries,
did not file any written statement. However, the witnesses
examined by the plaintiffs were cross-examined by them. They
also advanced arguments in the case.
5. The trial Court framed the following points for
determination.
(i) Is the suit maintainable in the eye of law ?
(ii) Is there any cause of action to file the suit ?
(iii) Whether the plaintiff No.2 has perfected his right,
title, interest over the suit land by way of adverse
possession ?
(iv) Can the defendants be directed to settle the suit
land in
favour of the plaintiff No.l in the alternative ?
(v) Whether the defendants can be permanently
injuncted from
the suit land ?
(vi) To what other relief the plaintiffs are entitled to ?
6. Taking up point Nos. (iii), (iv), (v) and (vi) together for
consideration, the trial Court, after going through the evidence
on record including the celebrated judgment of the Supreme
Court in the case of Karnataka Board of Wakf vs.
Government of India and Others1 held that the plaintiffs'
claim of adverse possession as well as for direction to the State
to settle the land in their favour is mutually contradictory. The
trial Court also found that the plaintiff could not satisfactorily
prove hostile animus which is an essential ingredient of
adverse possession. The plea of adverse possession was
therefore, negatived. As regards the other plea, the same was
held be contradictory to the main plea and was also negated.
The suit was thus dismissed.
7. The plaintiffs carried the matter in appeal. The
learned First Appellate Court after going through the impugned
judgment as well as on an independent assessment of the
pleadings of the plaintiffs and evidence on record and in
(2004) 10 SCC 779
particular, the provisions under Order -VIII Rule 5 and Order-
VIII, Rule 10 CPC, held that no case for interference is made
out. The First Appellate Court also took note of the essential
ingredients of adverse possession, particularly the factum of
corpus possidendi and animus possidendi and found that the
plaintiffs had not been able to satisfactorily prove both. It was
therefore, held that the finding of the trial Court that the
plaintiffs could not prove the plea of adverse possession, did
not warrant any interference. The First Appellate Court was
also of the view that the plea of adverse possession and the
relief of mandatory injunction are mutually inconsistent. On
such findings, the appeal was dismissed.
8. Being further aggrieved, the plaintiffs have
approached this Court in the present appeal.
9. Heard Mr. B. Baug, learned counsel appearing for
the appellants.
10. It is submitted by Mr. Baug that both the Courts
below have committed manifest error in holding that the plea of
adverse possession and the claim of mandatory injunction are
inconsistent. He further submits that such ground cannot be
applied in a suit against the State. Mr. Baug also submits that
in absence of written statement the Courts below ought to have
taken the course to provisions under Order-VIII Rule-5 and
Order-VIII Rule -10 CPC to decree the suit by granting either of
the reliefs to the plaintiffs.
11. This Court finds that the State defendants did not
file any written statement. As already stated, the trial Court,
however, thought it proper and rightly so, to frame the relevant
points for determination. What is the effect of non-filing of a
pleading to counter the pleadings of a plaint are well-known. In
so far as the requirement of specific denial is concerned, Rule-5
of Order-VIII is relevant and reads as under:
"5. Specific denial-- (1) Every allegation of fact in
the plaint, if not denied specifically or by necessary
implication, or stated to be not admitted in the
pleading of the defendant, shall be taken to be
admitted except as against a person under disability :
Provided that the Court may in it discretion
require any fact so admitted to be proved otherwise
than by such admission.
Provided further that every allegation of fact in
the plaint, if not denied in the manner provided under
Rule 3A of this Order, shall be taken to be admitted
except as against a person under disability
[(2) Where the defendant has not filed a
pleading, it shall be lawful for the Court to pronounce
judgment on the basis of the facts contained in the
plaint, except as against a person under a disability,
but the Court may, in its discretion, require any such
fact to be proved.
(3) In exercising its discretion under the proviso
to sub-rule (1) or under sub-rule (2), the Court shall
have due regard to the fact whether the defendant
could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under
this rule, a decree shall be drawn up in accordance
with such judgment and such decree shall bear the
date on which the judgment was pronounced. ".
Rule 10 of Order-VIII, which has been referred by Mr.
Baug, reads as under
"10. Procedure when party fails to present
written statement called for by Court.--Where
any party from whom a written statement is required
under rule 1 or rule 9 fails to present the same within
the time permitted or fixed by the Court, as the case
may be, the Court shall pronounce judgment against
him, or make such order in relation to the suit as it
thinks fit and on the pronouncement of such judgment
a decree shall be drawn up:]
[Provided further that no Court shall make an
order to extend the time provided under Rule 1 of this
Order for filing of the written statement."
12. This Court is of the view that Rule-10 would not
apply since the Court, despite non-filing of written statement
by the State Defendant within the period stipulated, did not
decide to pronounce judgment at once but decided to proceed
further. It is well settled that even in the absence of a pleading
it is open to the Court to consider the case of the plaintiff to be
subjectively satisfied as to if the relief claimed can nevertheless
be granted. Rule-5 refers to the requirement of law for the
defendant to specifically deny the plaint averments. In the
circumstances narrated above, the same would have no
application, since no written statement itself was filed.
13. After perusing the judgment passed by the trial
Court as confirmed by the First appellate Court, this Court
finds that the trial Court committed no error in proceeding
further with the case despite non-filing of written statement. It
is also seen that the trial Court examined the matter from the
point of view of the case put forth by the plaintiffs to see as to if
the relief claimed could be granted, which according to the
Court, is the correct approach.
14. After going through the evidence, the trial Court
found that the plea of adverse possession is not proved at all.
That apart, the other relief sought for i.e., mandatory
injunction to direct the defendants to settle the suit land in
favour of the plaintiffs, was also found to be without merit for
the reason that the plaintiffs, could not prove a justified and
legal basis for raising such a claim.
15. Learned counsel for the appellant has not been able
to demonstrate as to how the above finding of fact, which is
obviously based on the evidence on record, is incorrect or
perverse or otherwise against the evidence on record so as to
persuade this Court to interfere.
16. On an independent analysis, this Court is also of the
view that the plaintiff appellants have not been able to show
that the findings rendered by both the Courts below are such
as no prudent person would arrive at in the circumstances.
17. For the foregoing reasons therefore, this Court finds
no substantial question of law involved for adjudication in the
appeal. The appeal being thus devoid of merit, is therefore,
dismissed.
.................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack.
The 25th February, 2025/ A.K. Rana, P.A.
Designation: Personal Assistant
Location: HIGH COURT OF ORISSA, CUTTACK
