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2017 Supreme(Ori) 363
IN THE HIGH COURT OF ORISSA, CUTTACK
A.K. RATH, J.
Ramjan Khan & another - Appellants
Versus
State of Orissa & another - Respondents
S.A. No. 59 of 1997
Decided On : 24-03-2017
For the Appellants : Mr. Debasis Pattnaik
For the Respondents: Mr. Swayambhu Mishra
The main legal point established in the judgment is the mandatory nature of Section 80 CPC and the requirements for establishing adverse possession.
Headnote:
Adverse Possession - Land Dispute - Orissa Prevention of Land Encroachment Act, Orissa Government Land Settlement Act - Section 80 CPC, Alienation Case No. 07 of 1989 - Summary: The court discussed the plaintiffs' claim of adverse possession over the suit land, the mandatory provision of Section 80 CPC, and the legal principles of adverse possession. The court held that the suit was not maintainable due to non-compliance with Section 80 CPC and dismissed the appeal.
Fact of the Case:
The plaintiffs claimed adverse possession of a land recorded in the name of Orissa Sarkar. After the death of their father, they sought declaration of possession and permanent injunction. The trial court declared their possession and decreed the suit in part. The defendants appealed, and the lower appellate court dismissed the plaintiffs' appeal.
Finding of the Court:
The court found that the suit was not maintainable due to non-compliance with Section 80 CPC. It also held that the plaintiffs failed to prove continuous possession and that their claim of adverse possession was not substantiated.
Issues: The issues included the maintainability of the suit, cause of action, non joinder and mis-joinder of parties, adverse possession, jurisdiction of the Civil Court, and entitlement to relief.
Ratio Decidendi: The court emphasized the mandatory nature of Section 80 CPC and the requirements for establishing adverse possession, including peaceful, open, and continuous possession, and the need to prove the date of entry into the land.
Final Decision: The court dismissed the appeal, holding that the suit was not maintainable due to non-compliance with Section 80 CPC and that the plaintiffs failed to prove adverse possession.
JUDGMENT :
A.K. RATH, J.
This is plaintiff’s appeal against the judgment and decree dated 27.11.1996 and 12.12.1996 respectively passed by the learned District Judge, Sundargarh in T.A. No. 06 of 1992 reversing the judgment and decree dated 30.11.1991 and 16.12.1991 respectively passed by the learned Munsif, Sundargarh in T.S. No. 23/105 of 1989.
2. The case of the plaintiffs is that Hal Khata No. 519, Plot Nos.44, 45 and 46, area Ac.0.210 dec. of Rajgangpur ‘Kha’ Mouza was recorded in the name of Orissa Sarkar. Their father, Munsi Garib Mian was in possession of the suit schedule land till his death in the year 1972. He built up a godown over the suit land. He was a bone and hyde merchant. The house was used for business purpose. After death of his father, he was in occupation of the premises. In the remarks column of the R.O.R. published in the year 1977, forcible possession of their father had been reflected. For non-maintenance of the boundary wall, the same was collapsed. They were in occupation of the land without any hindrance. While matter stood thus, the suit land was handed over to the Telephone Exchange, Rourkela. Thereafter he filed an objection before the Tahasildar, Rajgangpur. But the same was rejected on 01.05.1989. They have perfected title by way of adverse possession. After issuance of notice under Section 80 CPC to defendant no.1, they instituted a suit seeking declaration of possession and permanent injunction.
3. Pursuant to issuance of summons, defendant no.1 entered appearance and filed a written statement denying the assertions made in the plaint. The case of the defendant no.1 is that the suit schedule land stood recorded in the name of Orissa Sarkar. In the remarks column of the R.O.R., forcible possession of Munsi Garib Mian had been reflected. On an enquiry, the Tahasildar found that there was no mud boundary wall over the suit land. After requisition from defendant no.2 for alienation of Government land for construction of Auto Telephone Exchange of Rajgangpur, necessary proclamation inviting objection was issued for alienation of the case land in Alienation Case No. 07 of 1989. No objection was received. After thirty days, the Tahasildar, Rajgangpur had recommended for alienation of the suit land to the Sub-Collector, Sundargarh on 28.04.1989. The Sub-Collector recommended to the Collector for sanction. The Collector accorded permission on 07.06.1989 on certain terms and conditions and subject to payment of premium of Rs.46,754/-. The premium amount was paid by defendant no.2 to the Tahasildar on 22.07.1989 by demand draft. Thereafter delivery of possession was made to the defendant no.2. The defendant no.2 also filed written statement taking a similar stand. It is stated that pursuant to the requisition for alienation of Government land dated 28.02.1989 by defendant no.1 for construction of departmental building and Auto Telephone Exchange at Rajgangpur, the Tahasildar, Rajgangpur had issued proclamation. After complying with the formalities under the Orissa Government Land Settlement Act and Rules framed thereunder, the Tahasildar recommended to Collector through the Sub-Collector for alienation of the land. The Collector accorded permission. Pursuant to same, the defendant no.2 paid an amount of Rs.46,754/- towards premium. Thereafter the delivery of possession was made to defendant no.2.
4. On the inter se pleadings of the parties, the learned trial court struck six issues. The same are:-
“(i) Is the suit maintainable ?
(ii) Is there any cause of action for the suit ?
(iii) Is the suit bad for non joinder and mis-joinder of parties ?
(iv) Whether the plaintiffs have perfected their right, and title over the suit land by way of adverse possession ?
(v) Whether the jurisdiction of the Civil Court is ousted as per the provisions of Orissa Prevention of Land Encroachment Act and the Orissa Government Land Settlement Act ?
(vi) Whether the plaintiffs are entitled to any relief ?”
5. To substantiate the case,
