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2017 Supreme(Ori) 67
IN THE HIGH COURT OF ORISSA : CUTTACK
A.K. RATH, J.
Manindranath Bhuyan - Appellant
Versus
State of Orissa & another - Respondents
SA No. 229 of 2000
Decided On : 20-01-2017
For the Appellant :Mr. Yeeshan Mohanty, Sr. Advocate, Mr. P.C. Biswal, Advocate.
For the Respondents: Mr. P.C. Panda, A.G.A.
Headnote:1. CIVIL PROCEDURE CODE, 1908 - Sec. 100 - In the R.O.R. published in the year, 1966 the suit land has been recorded in the name of the Forest Department, Government of Orissa - Kisam of the land is Jungle Block - Land vested in the State of Orissa free from all encumbrances - No pleading with regard to the date of entry of the plaintiff over the suit land - Mere possession of the suit land for long time is not suffice to hold that the plaintiff has perfected title by way of adverse possession, unless the classical requirements of adverse possession - Nec vi, nec clam, nec precario are pleaded and proved.
2. CIVIL PROCEDURE CODE, 1908 - Order 7 Rule 3 - Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case suit property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.
If the suit property is the whole of the plot in the settlement R.O.R., mere mention of Khata number, plot number and Mouza to which it appertains would be sufficient for its identification - Where the suit is in respect of a portion of a plot, further particulars are necessary for its proper identification - No effective decree can be passed by the Court in respect of suit property the description of which as given in the plaint, is not sufficient for its identification.
3. LAND - Burden of proof lies on the person who claims to acquire title of the land by way of adverse possession - Adverse possession is not a pure question of law, but a blended one of fact and law.
A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. It was further held that where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of another does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no tide at all.
JUDGMENT :
Dr. A.K. Rath, J.
Plaintiff is the appellant against the confirming judgment in a suit for declaration of right of occupancy and recovery of possession.
2. The case of the plaintiff is that Bhupendranath Bhuyan, the father of the plaintiff, was inducted as a tenant by the Ex– landlord of Burdhawan Estate. He made the suit land fit for cultivation and grew paddy crops thereon with the permission of the officials of Kujanga Estate. He took the suit land on lease in the name of his son-plaintiff from Raja of Burdhawan in Lease Case No.399/1949-50 and paid salami. The plaintiff and his father were the tenants under the State after the Orissa Estate Abolition Act came into force in the year 1952. Though he had taken steps before the settlement authorities, but then the R.O.R of the suit land was not issued in his favour. While the matter stood thus, Encroachment Case No.93/81 was initiated against him by the Tahasildar, Marsaghai. Further case of the plaintiff is that in the alternative if it is found that the father of the plaintiff or the plaintiff were not properly inducted as tenants in respect of the suit land, they have perfected title by way of adverse possession on the ground that his father as well as himself were in possession of the suit land continuously for more than 30 years with the knowledge of the government officials.
3. Pursuant to issuance of summons, the defendants entered appearance and filed comprehensive written statement denying the assertions made in the plaint. Apart from challenging the maintainability of the suit on the ground of non-issuance of notice under Section 80 CPC, it was pleaded that the order of eviction had been passed in Encroachment Case No.93/81 and the plaintiff had been dispossessed. The suit is not maintainable since recovery of possession has not been prayed. The description of the suit land is vague and indefinite. The suit land was unsurveyed jungle block under Kujanga estate. The estate was vested in the State in the year 1952. The settlement operation in the village was started in the year 1959. The ROR was finally published in the year 1966 in the name of the Forest Department, Government of Orissa. The kissam of the land is Jungle-II. Since the suit land was encroached by the encroachers, Encroachment Case No.93/81 was initiated against them. The encroachers admitted that the suit land is a Government land for which penalty of Rs.709.20 ps. was imposed on 24.12.1981. The same had been paid by the encroachers on 4.1.1987. The encroachers had been evicted by due process of law. Further, after vesting in the State, no ekapadia was submitted by the ex-landlord in favour of the plaintiff.
4. On the inter se pleadings of the parties, learned Munsif, Kendrapara framed six issues, which are quoted hereunder;
“1. Is the suit maintainable?
2. Has the plaintiff any cause of action?
3. Is the suit hit under Section 80 CPC ?
4. Has the plaintiff acquired any right, title, interest or possession by way of adverse possession over the suit land?
5. What other relief, the plaintiff is entitled to ?
6. Whether the plaintiff has acquired the right of occupancy in respect of the suit land ?”
5. To substantiate the case, the plaintiff had examined five witnesses and on his behalf, eight documents had been exhibited. The defendants had neither examined any witness nor exhibited any document. Learned trial court came to hold that neither the plaintiff nor his father was a tenant under the Ex-intermediary. In absence of any evidence of possession for a continuous period, no right of occupancy can be created in his favour. It was further held that there is no evidence with regard to holding any land under the ex-landlord from the year 1950 till 1960. The claim as regards the right acquired through adverse possession has been clearly refuted by the Forest Settlement Officer. Held so, learned trial court dismissed the suit.
6. Assailing the judgment and decree passed by the learned trial court, the plaintif
