land as stated in para-5 of the plaint. It is the case that he
possessed the suit land which measures Ac.0.118 decimals. Prior
to purchase of the land other than the suit land from Ankur he
was possessing the same on Thika basis and thereafter having
purchased the land other than the suit land as the adjoining land
possessed as such. Nothing is pleaded here that the plaintiff
possessed the suit land as a part of his purchased land and as its
owner. It is also not pleaded either in so many words or even by
providing any hint that while coming to possess the purchased
land, the plaintiff no more continued to possess the suit land
under the arrangement that he was earlier having with Ankur. The
said sale deed has not been proved in the case to show that Ankur
while delivering the possession of the land that he sold to the
plaintiff had also delivered of possession of the adjoining of the
land to him as that of a purchaser. Thus, the very basis of
possession of the suit land which is one of the important
foundational fact, even accepting the factum of possession of the
suit land has not been pleaded. The plaintiff merely saying to have
been in possession of the suit land along with his purchased land
does not suffice the purpose so as to satisfy the requirement of law
for the doctrine of adverse possession to have its play in the
positive. It was absolutely incumbent on his part to plead and
prove that while going to possess the purchased land as its owner
being sold by Ankur, the original owner, wholly shunning the
nature of possession as it was by him on Thika basis earlier in so
far as the suit land is concerned began to possess the suit land as
like that of the purchased land as a part and parcel of it and its
owner. Thus, the basic ingredient for establishing a case of
acquisition of title by adverse possession over the suit land is
wholly wanting in the pleading. Moreover, in this case, the plaintiff
on his own showing admits to have made application for settlement
of the suit land in his favour. This prayer for grant of lease clearly
amounts to admission of the title of the true owner asking it to
stand in the position of lesser putting the plaintiff-applicant in the
position of a lessee in respect of the suit land. Thus, even if for the
sake of argument, it is accepted that the plaintiff has been in
possession of the suit land since the year 1957, the said
possession does place him nowhere for the purpose of
establishment of a case of acquisition of title by adverse possession
as there remains no exhibition of hostile animus in denial of the
title of the true owner and rather the title of the true owner stands
accepted. It has been noted by the trial court that the plaintiff has
not deposed during his examination-in-chief as regards any such
overt act on his part in so far as the suit is concerned so as to infer
that his possession from that date, commenced in denial of the
title of the State. The lower appellate court as is seen from the
judgment has taken note of the settled position of law holding the
field while going to reanswer the said issue no. 7 by independent
examination of evidence on record. It has again been found by the
lower appellate court that in Encroachment Case No. 14 of 1968,
the plaintiff had paid the fine amount and pleaded in para-8 of the
plaint as regards the fact that the plaintiff had applied for lease.
On these admitted facts when now the plaintiff is in possession of
the adjoining land belonging to the State as a lessee as per his own
case the question of his possessing the suit land as its owner
denying the title of the true owner is not acceptable in view of the
above discussed wants in the pleading and lack of evidence on
those scores.
HIGH COURT OF ORISSA: CUTTACK.
RSA. No. 491 of 2006
Smt. Sarala Mishra
V
Stateof Orissa and another
PRESENT:
SHRI JUSTICE D.DASH
Dated -22.07.2016
Citation:AIR 2016 (NOC)693 Orissa
1. This appeal has been filed challenging the judgment
and decree passed by the learned Ad hoc Addl. District Judge,
FTC-II, Keonjhar in T.A. No. 14/39 of 2006/2000 confirming the
judgment and decree passed by the learned Civil Judge (Sr.Divn.),
Keonjhar in T.S. No. 96/97.2
The predecessor-in-interest of the appellants as the
plaintiff had filed the suit against the State and its officials
arraigning them as defendants for declaration of his right, title
and interest over the suit land by adverse possession and for
further declaration that the order passed by the respondent no.1-
defendant no.2 in Encroachment Case No. 4/94-95 is unfair,
arbitrary and unjust. The suit having been dismissed, the original
plaintiff being aggrieved had carried the first appeal under Section
96 of the Code of Civil Procedure and that having yielded no
fruitful result, the present second appeal under Section 100 of the
Code has been filed. It may be stated here that during pendency of
the first appeal, the original plaintiff-respondent having died, his
legal representatives are pursuing the appeal and therefore, now
the appellants before this Court.
2. For the sake of convenience, in order to bring in clarity
and avoid confusion, the parties hereinafter have been referred to
as they have been arraigned in the trial court.
3. The plaintiff’s case is that the suit land originally belonged
to the State and it was Gochar kissam of land. One Ankur Jena 3
was in possession of the same and had converted it to Sarad land.
The plaintiff claims to have possessed the suit land in the year
1956. In the year 1957, the plaintiff purchased another piece of
land belonging to Ankur Jena by registered sale deed. It is stated
that prior to the said purchase of the land by the plaintiff from
Ankur, the plaintiff was in possession of the purchased land as
also the suit land on Thika basis being so permitted by Ankur.
After purchase of that land belonging to Ankur, the plaintiff
continued to possess the purchased as well as the suit land. It is
stated that in the year 1957, the plaintiff constructed a house
incurring loan and after completion of the same, he rented it out to
tenants keeping a portion for his own house. Thus the suit land as
also the purchased land are said to be in his possession as a
compact plot. This possession of the suit land is said to be open,
peaceful and continuous in exercise of all the right of ownership
denying the title of the true owner exhibiting hostile animus. It is
stated that in the major settlement, the suit land was recorded in
the name of the State, the defendant no.1 with noting of
possession in favour of the plaintiff. In the year 1967, an
encroachment case being booked against the plaintiff in respect of
an area of Ac.0.08 decimals out of the total land measuring
Ac.0.123 decimals under plot No. 116, order of eviction was
passed. So the plaintiff applied for settlement of the land on lease
basis. It was granted to him vide Lease Case No. 68/32 in respect
of an area Ac.0.05 decimals and lease deed was accordingly
executed and registered on 14.12.77 creating two plots i.e. plot
Nos. 116/1 and 116/2 measuring Ac.0.02 decimals and Ac.0.03
decimals respectively. The remaining area of Ac.0.118 decimals is
the subject matter of the suit as described in the schedule.
It is stated that in the year 1993, Grade IV Employees
Association of the Collectorate, Keonjhar applied for settlement of
the suit land in their favour for which Lease Case No. 4 of 1993
was initiated. The plaintiff made his protest therein. The plaintiff
later on was booked in another Encroachment Case bearing No. 4
of 1994-95. In that case, the plaintiff again claimed for settlement
of the suit land. However, that being turned down, order of eviction
was passed. The matter being challenged before this Court filing a
writ application giving rise to OJC No. 1151 of 1995, it was
remanded for fresh enquiry. Be that as it may, finally order of
eviction followed. There was appeal and revision in the matter. The
matter though again stood remanded, yet the order of eviction
again came as the result. All these have ultimately led the plaintiff
to file the suit.
4. The defendants in their written statement asserted that by
virtue of the order in the Encroachment Case No. 14 of 1967-68,
the suit land was ultimately vacated by the plaintiff. The claim of
the plaintiff as regards open, peaceful and continuous possession
of the suit land for upward of the period prescribed with hostile
animus stands denied.
5. On such rival pleadings, the trial court framed nine issues.
Taking up issue no. 7 which concerns with the claim of the plaintiff
for decision, the trial court answered the same against the plaintiff
that he has not perfected his title over the suit land by adverse
possession. This has practically resulted the dismissal of the suit.
The decision on the issue was called in question by carrying a first
appeal as the fate of the suit hinges upon the answer to the same.
The lower appellate court by going to judge the sustainability of the
finding recorded by the trial court having taken up the exercise of 6
evaluation of evidence on record in the backdrop of the rival claim
as also the other circumstances emanating from evidence, has
gone to agree with the decision of the trial court and accordingly
affirmed it.
6. Learned counsel for the appellants submits that although
the courts below have concurrently answered the issue no. 7
against the plaintiff holding him to have not perfected right, title
and interest over the suit land by adverse possession yet it is
unsustainable being perverse for wholly improper appreciation of
evidence as also without keeping in mind the settled law covering
the subject. So he contends that the following is the substantial
question of law involved in this case:-
“Whether the concurrent finding of the courts below on
issue no. 7 suffers from the vice of perversity?”
7. Learned counsel for the State appearing in the case
submits that the above finding on fact having been rendered
concurrently by the courts below on appreciation of evidence oral
and documentary evidence let in by the plaintiff, there remains no
scope for this Court to say that the same are perverse since7
nothing in specific is shown that any material evidence have
remained without due consideration which if would have been
given due weightage, the finding would have been otherwise.
8. In view of the above submission, in order to search out the
existence of substantial question of law in this appeal if any
standing to be certified for admission, let us first of all take note of
the relevant facts as stated in the plaint.
9. Admittedly, the plaintiff purchased land adjoining the suit
land as stated in para-5 of the plaint. It is the case that he
possessed the suit land which measures Ac.0.118 decimals. Prior
to purchase of the land other than the suit land from Ankur he
was possessing the same on Thika basis and thereafter having
purchased the land other than the suit land as the adjoining land
possessed as such. Nothing is pleaded here that the plaintiff
possessed the suit land as a part of his purchased land and as its
owner. It is also not pleaded either in so many words or even by
providing any hint that while coming to possess the purchased
land, the plaintiff no more continued to possess the suit land
under the arrangement that he was earlier having with Ankur. The
said sale deed has not been proved in the case to show that Ankur
while delivering the possession of the land that he sold to the
plaintiff had also delivered of possession of the adjoining of the
land to him as that of a purchaser. Thus, the very basis of
possession of the suit land which is one of the important
foundational fact, even accepting the factum of possession of the
suit land has not been pleaded. The plaintiff merely saying to have
been in possession of the suit land along with his purchased land
does not suffice the purpose so as to satisfy the requirement of law
for the doctrine of adverse possession to have its play in the
positive. It was absolutely incumbent on his part to plead and
prove that while going to possess the purchased land as its owner
being sold by Ankur, the original owner, wholly shunning the
nature of possession as it was by him on Thika basis earlier in so
far as the suit land is concerned began to possess the suit land as
like that of the purchased land as a part and parcel of it and its
owner. Thus, the basic ingredient for establishing a case of
acquisition of title by adverse possession over the suit land is
wholly wanting in the pleading. Moreover, in this case, the plaintiff
on his own showing admits to have made application for settlement
of the suit land in his favour. This prayer for grant of lease clearly
amounts to admission of the title of the true owner asking it to
stand in the position of lesser putting the plaintiff-applicant in the
position of a lessee in respect of the suit land. Thus, even if for the
sake of argument, it is accepted that the plaintiff has been in
possession of the suit land since the year 1957, the said
possession does place him nowhere for the purpose of
establishment of a case of acquisition of title by adverse possession
as there remains no exhibition of hostile animus in denial of the
title of the true owner and rather the title of the true owner stands
accepted. It has been noted by the trial court that the plaintiff has
not deposed during his examination-in-chief as regards any such
overt act on his part in so far as the suit is concerned so as to infer
that his possession from that date, commenced in denial of the
title of the State. The lower appellate court as is seen from the
judgment has taken note of the settled position of law holding the
field while going to reanswer the said issue no. 7 by independent
examination of evidence on record. It has again been found by the
lower appellate court that in Encroachment Case No. 14 of 1968,
the plaintiff had paid the fine amount and pleaded in para-8 of the
plaint as regards the fact that the plaintiff had applied for lease.
On these admitted facts when now the plaintiff is in possession of
the adjoining land belonging to the State as a lessee as per his own
case the question of his possessing the suit land as its owner
denying the title of the true owner is not acceptable in view of the
above discussed wants in the pleading and lack of evidence on
those scores.
10. For the aforesaid discussion and reasons, the submission
of the learned counsel for the appellant fails and this Court finds
that there surfaces no such substantial question of law in this case
for being certified for admission of the appeal..
The appeal thus does not merit admission.
11. Resultantly, the appeal stands dismissed. No order as to
cost.
….………………
D.Dash, J.
Orissa High Court, Cuttack,
Dated the 22nd day of July , 2016/Aswini
No comments:
Post a Comment