A suit for declaration of title and possession based on adverse possession is not maintainable where the plaintiff's possession started less than 30 years before the initiation of eviction proceedings under the Orissa Public Premises (Eviction of Unauthorised Occupants) Act, 1972, and the plaintiff had applied for settlement of the land in his favor, acknowledging the Government's earlier title.

A. K. PADHI, J.

( 1 ) PLAINTIFF is the appellant. Suit is for declaration of right, title, interest and confirmation of possession in respect of the suit land and for permanent injunction with further prayer to declare that the order of eviction dated 9/ 10-8-1982 passed by defendant No. 2 in O. P. P. Case No. 9 of 1975 is illegal, arbitrary, unlawful, inoperative and unenforceable in law.

( 2 ) IN the plaint it has been averred that the suit land belonged to the Government which was a low land wherein water was accumulating. Plaintiff, a landless person, in or about 1944 possessed the suit land by filling up the watery low land and improved it by spending a huge amount and occupied the same by constructing a house thereon. In view of the long possession of the plaintiff, the suit land had also been recorded in his favour in the settlement records. The suit land is neither required for any developmental purpose or any other purpose of the Government. In the month of April, 1975 defendant No. 2 issued a notice under S. 4 (1) of the Orissa Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter referred to as "the Act") and thereafter initiated O. P. P. case No. 9 of 1975 seeking eviction. It is further averred that the provision of the said Act is not applicable to the suit land nor defendant No. 2 has the jurisdiction in the matter, therefore, the entire proceeding is to be declared as null and void. It is further prayed that since the plaintiff was in possession by the date of the eviction for more than the statutory period of 39 years, he had already prefected his title in respect of the suit land by adversely possessing the same.

( 3 ) THE defendants filed a written statement. In the written statement it is averred that the suit is not maintainable in view of S. 14 of the Act which mandates that for any order made under the Act for which there is provision under the Act the same shall not be questioned in any original suit or proceeding. In the written statement it is further asserted that in view of the admission of the plaintiff that he had filed application before the authorities for granting lease in his favour, the question of adverse possession does not arise and the plaintiff never perfected title by way of adverse possession.

( 4 ) THE learned trial court after considering the evidence both oral and documentary, came to the conclusion that the plaintiff's possession started from 1960 and not from the year 1944, therefore, the statutory period of 30 years was not completed by the date of the initiation of O. P. P. Case No. 9 of 1975. In view of the application dated 25-8-1976 (Ext. 5) made by the plaintiff to lease out the land, question of adverse possession does not arise. The learned trial court came to the further conclusion that in view of Sections 10 and 14 of the Act, the suit is not maintainable as the prayer is to declare the order passed in O. P. P. Case No. 9 of 1975 to be null and void.

( 5 ) THE learned advocate for the appellant submitted that since the defendants did not have any jurisdiction to pass the order of eviction, the suit is maintainable. He further submitted that in view of the possession of the plaintiff-appellant from the year, 1944, by the time the proceeding for eviction was initiated, the plaintiff had perfected title by adverse possession for which the proceeding under the Act was not maintainable. Learned Additional Government Advocate, on the other hand, submitted that the evidence on record proves that the plaintiff came into possession in the year 1960, therefore, question of adverse possession does not arise. She further submitted that the proceeding which was initiated against the plaintiff being within the jurisdiction of the authorities under the Act, the same cannot be challenged in a suit.

( 6 ) FROM the rival contentions, the moot questions which arise for consideration are as to whether the plaintiff had prefected his title by adverse possession on