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2017 Supreme(Ori) 239
IN THE HIGH COURT OF ORISSA, CUTTACK
A.K. RATH, J.
Kumuduni Panigrahi - Appellant
Versus
Executive Officer, Berhampur Municipality and others - Respondents
S.A. No. 244 of 1993
Decided On : 03-03-2017
Advocate Appeared:
For the Appellant : Mr. Baibaswata Panigrahi
For the Respondents: Miss Samapika Mishra
A suit for permanent injunction will not lie when the title of the plaintiff is under a cloud of suspicion, and adverse possession requires peaceful, open, and continuous possession with a hostile animus.
Headnote:
encroachment - property dispute - Orissa Municipal Act, Sec.254, Sec.349 - The court discussed the plaintiff's claim of adverse possession, the principles of when a suit for permanent injunction will lie, and the requirements for adverse possession. The court also considered the implications of the municipality's approval of building plans and the plaintiff's application for lease. The court found that the plaintiff's claim of adverse possession was negatived and that the suit for permanent injunction was not maintainable due to the cloud of suspicion over the plaintiff's title.
Fact of the Case:
The plaintiff claimed ownership of a piece of land and filed a suit for permanent injunction against the defendants who claimed that the plaintiff had encroached upon their land. The trial court dismissed the suit, and the plaintiff appealed.
Finding of the Court:
The court found that the plaintiff's claim of adverse possession was negatived and that the suit for permanent injunction was not maintainable due to the cloud of suspicion over the plaintiff's title.
Issues: The issues included the maintainability of the suit, the right, title, interest, and possession of the plaintiff, and the relief the plaintiff was entitled to.
Ratio Decidendi: The court held that a suit for permanent injunction will not lie when the title of the plaintiff is under a cloud of suspicion, and that adverse possession requires peaceful, open, and continuous possession with a hostile animus.
Final Decision: The appeal was dismissed with no order as to costs.
JUDGMENT :
A.K. Rath, J.
Plaintiff is the appellant against a confirming judgment in a suit for permanent injunction.
2. The case of the plaintiff is that she is the owner in possession of an area of Ac.0.10 decimal of land described in ‘A’ schedule of the plaint. The backyard is encroached by a compound. She purchased the land from one Rangalal and others by means of a registered sale deed dated 1.12.1967 for a valid consideration. The ROR was issued by the settlement authority in her favour on 23.6.1979. She constructed a building over the same after obtaining permission from the municipality. The defendants have no semblance right, title and interest over the same.
The defendants claimed an area of 1207 sq. ft. which is in her occupation. While the matter stood thus, the defendants by letter dated 2.5.1984 directed her to vacate the area by 20.5.1984, failing which, the encroachment shall be removed by the municipality. The municipal authority has no jurisdiction to invoke provision of Sec.254 of Orissa Municipal Act for removal of encroachment. On 26.7.1982, she issued a letter stating that there is no encroachment of any municipal area and as such the municipality can refer the matter to the encroachment committee and till the matter is finalized, the municipality cannot demolish the area. Since the municipality has issued notice to demolish the encroachment by 20.5.84, there is no time to comply the provisions of Sec.349 of the Orissa Municipal Act. With this factual scenario, the suit has been filed seeking the reliefs mentioned supra.
3. Pursuant to issuance of summons, the defendants entered appearance and filed written statement denying the assertions made in the plaint. The case of the defendants is that the plaintiff has unauthorisedly tried to grab Anabadi land of area Ac.0.016 decimals appertaining to plot no.998. The specific case of the defendants is that Survey No.351/1A of mouza Bijipur has been assigned to the municipality by notification no.378 of the year 1927. The plaintiff has purchased an area Ac.0.10 dec. of land and constructed a residential house. But then, she has encroached upon an area of 1207 sq. ft. of land belonging to the defendants. No notice under Sec.349 of the Orissa Municipal Act has been served on the defendants and as such the suit is not maintainable. Since the plaintiff admitted that the suit land belongs to the defendants and filed a petition before the municipality to settle the land in her favour, she cannot questioned the title of the defendants.
4. Stemming on the pleadings of the parties, learned trial court struck four issues. They are:-
“1. Whether the suit is maintainable ?
2. Whether the suit is bad for non-joinder and misjoinder of the parties ?
3. Whether the plaintiff has right, title, interest and possession over the suit property and if the plaintiff and her vendor acquired title by adverse possession in respect of the area in excess as shown by the Commissioner ?
4. To what relief the plaintiff is entitled ?”
5. To substantiate the case, the plaintiff had examined three witnesses and on her behalf eight documents had been exhibited. The defendant nos.1 and 2 had examined two witnesses and on their behalf nine documents had been exhibited. One witness was examined and two documents had been exhibited by the defendant no.3.
6. Learned trial court came to hold that pursuant to the order dated 11.5.84, notice was issued to the defendants and it must be held that notice on the defendants has been validly served. The suit is not bad for mis-joinder of parties and accordingly answered issue nos.1 and 2 in affirmative in favour of the plaintiff. It further held that the registered sale deed vide Ext.2 shows that the extent of land was Ac.0.10 cents only. The Civil Court Commissioner found that the suit property was an area Ac.13.7 cents. It further held that ROR neither creates title nor extinguishes title. The claim of the plaintiff that she acquired title by way of adverse possession wa
