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2017 Supreme(Ori) 781
IN THE HIGH COURT OF ORISSA, CUTTACK
A.K. RATH, J.
Giridhari Sahu (since dead) through L.Rs. – Appellants
Versus
State of Orissa and others – Respondents
S.A. No.24 of 1985
Decided On : 04-09-2017
For the Appellant :Mr. L.K. Moharana, Advocate
For the Respondent: Mr. S. Mishra, A.S.C.
The main legal point established in the judgment is that mere possession for a long time is not enough to establish adverse possession, and the classical requirements of adverse possession must be pleaded and proved.
Headnote:
Adverse Possession - Land Dispute - Orissa Prevention of Land Encroachment Act - Sec.7 of OPLE Act - Sec.7(b) of Orissa Merged State Law Act
Fact of the Case:
Plaintiff claimed title and permanent injunction over a land he occupied for more than 46 years. Defendant denied plaintiff's possession and claimed the land was recorded in the name of the Government. Plaintiff's alternative plea was that he was a tenant by recorded tenant of the State and had acquired tenancy right.
Finding of the Court:
Trial court decreed the suit in favor of the plaintiff, holding that he had perfected title by way of adverse possession. Appellate court negatived the plea of adverse possession and allowed the appeal. The second appeal was admitted on substantial questions of law.
Issues: The court considered issues related to possession, adverse possession, tenancy rights, and settlement records.
Ratio Decidendi: The court held that mere possession for a long time is not sufficient to establish adverse possession unless the classical requirements of adverse possession are pleaded and proved. The plaintiff's alternative plea of tenancy rights was also dismissed due to lack of evidence.
Final Decision: The appeal was dismissed as it was found to be without merit.
JUDGMENT :
A.K. Rath, J.
Plaintiff is the appellant against a reversing judgment in a suit for declaration of title and permanent injunction.
2. The suit schedule property appertaining to khata no.2102, plot no.1905, area Ac.0.010 dec. situates in front of Dhenkanal Headquarters Hospital.
3. The case of the plaintiff is that he started his grocery business over the suit land. The same was recorded in the name of the Government. He was in occupation of the land since more than 46 years. The Ex-Ruler of Dhenkanal had encouraged the people to occupy lands, since the area was not developed. The Ex-Ruler allowed him to stay over the land. His family constructed their house over another place, but then the suit land was reserved for their business. While the matter stood thus, he received a notice in the year 1969 under Sec.7 of the Orissa Prevention of Land Encroachment Act (hereinafter referred to as “OPLE Act”) to vacate the land. He filed a writ petition before this Court stating therein that he was in possession of the land peacefully, openly and without any interference of the defendants for more than 40 years. The order of eviction was quashed. Thereafter the Tahasildar, Dhenkanal, defendant no.2, issued notice to him to vacate the land. He filed show-cause stating therein that he had perfected title by way of adverse possession and not liable to be evicted. Pursuant to the direction of the State of Orissa, the persons in occupation of the land before 1961, the land should be settled with the person, who was in possession. His alternative plea was that in the event it was held that he had not acquired title over the land by way of adverse possession, he having been inducted as a tenant in the disputed property by the recorded tenant of the State, i.e., Sarbananda Sidha Brahmachari and the properties belonged to the said tenant had been wrongly recorded in the State after merger, he had acquired tenancy right in respect of the property and not liable to be evicted by the Government. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.
4. The defendant no.1 filed written statement denying the assertions made in the plaint. The possession of the plaintiff over the suit land for more than 45 years had been denied. The specific case of the defendant no.1 is that the suit land was all along lying vacant till 1964. The same was not in possession of the plaintiff or his forefathers. He unauthorisedly occupied Ac.0.005 dec. of land out of the suit plot in 1964, an encroachment case was initiated against him. Being emboldened with the order of this Court, he had encroached upon an area of Ac.0.015 dec. out of the suit plot, for which Encroachment Case No.172 of 1972 was initiated against him. He had not perfected title by way of adverse possession. It was further pleaded that the suit land is situated at the turning point of Cuttack-Sambalpur road at Baji Chowk. In Baji Chowk all the important public meetings were held. In view of its situation and public utility, the encroachment was objectionable. The alternative plea putforth by the plaintiff had been denied. The plaintiff was not inducted as a tenant on the disputed property by the recorded tenant of the State. He had not acquired tenancy right over the same. The documents in support of this belated and inconsistent pleading of the plaintiff were manufactured. The suit land had been recorded in the name of the State in the year 1923-24 settlement. In the current settlement of the year 1965, the record of right was published in the name of the State. The defendant no.4 is neither necessary nor proper party to the suit.
5. On the interse pleadings of the parties, learned trial court struck five issues. Both the parties led evidence, oral and documentary, in support of their cases. Learned trial court came to hold that the plaintiff had admitted that the suit plot situated in front of Dhenkanal Headquarters Hospital. The same had been recorded in the name
