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High Court Of Orissa
P. K. Misra
MANGALA THAKURANI BIJE - Appellant
Versus
SITA DEVI (DELETED) ARKHIT BHOI - Respondent
Appeal 203 Of 1986
Decided On : 10/29/1999
CONSOLIDATION OF HOLDINGS AND PREVENTION OF FRAGMENTATION OF LAND ACT, 1972 - SECTION 25 - TITLE TO HOMESTEAD LAND - DETERMINATION BY CONSOLIDATION AUTHORITIES - EXTENT OF AUTHORITY - RECORD-OF-RIGHTS AS EVIDENCE OF TITLE - FORCIBLE POSSESSION NOTED IN RECORD-OF-RIGHTS - CAUSE OF ACTION FOR SUIT FOR RECOVERY OF POSSESSION - ADVERSE POSSESSION - BURDEN OF PROOF.
Fact of the Case:
Plaintiffs filed a suit for declaration of title and recovery of possession of disputed land, which was recorded in the name of the plaintiff-Deity in the Record-of-Rights published in 1981 under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. Defendant No. 1 claimed right by way of adverse possession and alleged that his house was located on a portion of the disputed land.
Finding of the Court:
The trial court dismissed the suit on the ground that the plaintiffs had failed to prove the title of the Deity. The lower appellate court observed that the plaintiffs had proved the title of the Deity but dismissed the suit on the ground that the plaintiffs had failed to prove the alleged encroachment by the defendant.
Issues: 1. Whether the lower appellate court committed an illegality in dismissing the suit after having found the title of the plaintiff-Deity in respect of the disputed land, particularly keeping in view the fact that in respect of the disputed land, the forcible possession of the defendant had been noted in the Record-of-Rights? 2. Whether the defendant had perfected title by adverse possession over the disputed land?
Ratio Decidendi: 1. The consolidation authorities have the authority to decide about the right, title, and interest of a particular person even in respect of homestead land. The disputed land was recorded in the name of the deity in the Record-of-Rights, which can be taken to be a determination of the title of the Deity over the disputed land. 2. The note of forcible possession of the defendant in the Record-of-Rights can be taken to be a cause of action for filing the suit. The lower appellate court erred in observing that the plaintiffs had failed to prove the cause of action for filing the suit. 3. Once the title of the Deity is established, prayer for recovery of possession is to be granted unless the defendant proves acquisition of title by adverse possession.
Final Decision: The second appeal was allowed, and the matter was remanded to the trial court to depute a Survey-knowing Commissioner to demarcate the portion on which the house of the defendant exists and to decide the matter in accordance with the observations made by the High Court.
P. K. MISRA, J.
( 1 ) PLAINTIFFS have filed this second Appeal against confirming decisions of the Courts below.
( 2 ) THE case of the plaintiffs is as follows :-the disputed property relates to plot No. 341 in Khata No. 115 as indicated in the final record-of-Rights published in the year 1981 under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act (in short, the "consolidation Act" ). Plot No, 801 in Khata No. 113 with an area of Ac. 0. 06 decimals was recorded in the name of the plaintiff-Deity Mangala Thakurani in the record-of-Rights published in the year 1976. The Bijesthali of the Deity is located in the said plot. The house of defendant No. 1 stands on the adjacent plot No. 802. During the consolidation proceeding, defendant no. 1 encroached upon Ac. 0. 02 decimals of land from the northern portion of plot No. 801 and started constructing a house thereon. Subsequently, in the Consolidation Record-of-Rights plot No. 801 was divided into two sub-plots. Plot No. 801 with an area of Ac. 0. 04 decimals was recorded in the name of the plaintiff-Deity and plot No. 801/327 with an area of ac. 0. 02 decimals of land was recorded in the name of the Deity with note of forcible possession of defendant No. 1. Plot No. 801 with an area of Ac. 0 04 decimals corresponds to consolidation Plot No. 340, whereas the disputed land appertaining to plot No. 801/327 corresponds to Consolidation plot No. 341. Though both the plots have been recorded in the name of the plaintiff-Diety. the note of forcible possession of defendant No. 1 has been recorded in respect of plot No. 341. On the aforesaid allegations, the suit was filed for declaration of title and for recovery of possession.
( 3 ) DEFENDANT No. 1 while denying the allegations made in the plaint claimed that the residential house of defendant No. 1 is located on portion of plot No. 801/327 as well as plot No. 802. Defendant No. 1 also claimed right by way of adverse possession. In the current Settlement Record. of Rights of 1928. plot No. 712 was recorded in the name of lokanath Panigrahi and others. At that time defendant No. 1 and his mother constructed a house about fifty years back on plot No. 712. Subsequently, in 1955, defendant No. 1 purchased plot No, 710 measuring Ac. 0. 12 decimals which is to the north of the house of defendant no. 1. After purchasing plot No. 710. defendant No. 1 constructed a kitchen room adjoining to his existing house and dug a well and used the other portion as garden. It is claimed the plot No. 710 of 1928 Settlement corresponds to plot No. 802 and portion of plot No. 801/327 and plot No. 712 of 1928 settlement corresponds to plot No. 801 and portion of plot No. 801/327. It is claimed that the residential house of defendant No 1 stands on plot No. 801/327.
( 4 ) THE trial Court found that the plaintiffs have failed to prove the title of the Diety over the disputed land. It was further found that even though defendant No. 1 had failed to prove adverse possession, since the plaintiffs have failed to prove their title over the disputed land, the suit is to be dismissed.
( 5 ) IN appeal, the lower appellate Court observed :". . . . . BUT the fact that the plaintiff has been recorded as the Stithiban raiyat in both the R. O. Rs. cannot be ignored so far as title to the suit land is concerned "in other words, the lower appellate Court apparently believed that the plaintiffs have proved the title of the Deity over the disputed land. Subsequently, the lower appellate Court held that "the plaintif has to prove not only title but to prove the alleged encroachment on the suit land". However, in spite of such finding, the lower appellate Court dismissed the suit and confirmed the decree of the trial Court on the ground that the plaintiff had failed to prove all the alleged encroachment by defendant no. 1.
( 6 ) AT the time of admission of the appeal on 23. 3. 1988. the following substantial question of law was framed : "when a d
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