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2018 Supreme(Ori) 27
IN THE HIGH COURT OF ORISSA : CUTTACK
A.K. RATH, J.
Berhampur Municipality represented through its Executive Officer - Appellant
Versus
Sri Kothari Thakurani represented by Archak Trustee and another - Respondents
R.S.A. No. 525 of 2004
Decided On : 09-05-2018
Advocate Appeared:
For the Appellant : Mr. Ajit Kumar Choudhury
For the Respondents: Mr. Budhadev Routray, Mr. Subhadutta Routray, Mr. R.P. Mohpatra
The central legal point established in the judgment is the requirement for establishing adverse possession, the legal status of a deity as a juristic person, and the need for evidence to support adverse possession claims.
Headnote:
Adverse Possession - Property Dispute - Orissa Municipal Act - R.O.R. - [Section 349 of the Orissa Municipal Act, 1972] - [AIR 1934 PC 23, (2004) 10 SCC 779] - The court discussed the issue of adverse possession and the requirements for establishing adverse possession. It highlighted the classical requirements of adverse possession and emphasized the need for peaceful, open, and continuous possession adverse to the true owner. The court also considered the legal status of the deity as a juristic person and its ability to claim adverse possession. The judgment set aside the lower court's decision and dismissed the suit based on the lack of evidence to establish adverse possession.
Fact of the Case:
Plaintiff, a deity, claimed title and possession of a land against defendant no.1. Defendant no.1 contested the claim, asserting that the land belonged to the Government and was transferred to the Municipality. The lower courts decreed the suit in favor of the plaintiff, finding adverse possession and ordering the removal of defendant no.1's constructions. Defendant no.1 appealed the decision.
Finding of the Court:
The court found that the plaintiff failed to establish adverse possession over the land. It also held that the deity, as a juristic person, could not be considered a landless person and could not claim adverse possession. The court set aside the lower court's decision and dismissed the suit.
Issues: The issues involved the validity of the suit without mandatory notices, the property status of the land, and the claim of adverse possession by the deity.
Ratio Decidendi: The court emphasized the classical requirements of adverse possession, the legal status of the deity, and the need for evidence to establish adverse possession. It held that mere possession for a long time is not sufficient to establish adverse possession.
Final Decision: The appeal was allowed, and the suit was dismissed.
JUDGMENT :
A.K. Rath, J.
Defendant no.1 is in appeal against a confirming judgment of the learned Additional District Judge, Berhampur.
2. Plaintiff-respondent no.1 instituted the suit for declaration of title and permanent injunction. Plaintiff is a deity. The case of the plaintiff is that originally the suit land was Grama Kantha Pormoboke. The archaka of the deity constructed the shop rooms over the suit land and let out the same to different persons. During emergency of the year 1976-77, defendant no.1 demolished the shop rooms and took possession of the same. Thereafter in the year 1978, defendant no.1 started construction over the suit land and completed the same.
3. Defendant no.1 entered contest and filed written statement denying the assertions made in the plaint. The case of defendant no.1 is that Gramkantha Paramboke land belongs to the Government. The plaintiff has no title over the same. The defendant no.1 demolished the structure and thereafter raised construction of the shop rooms and school. Defendant no.2 filed written statement stating that the suit land is Gramkantha Paramboke. The said land has been recorded as Sarbasadharan.
4. Stemming on the pleadings of the parties, learned trial court framed thirteen issues. Parties led evidence, both oral and documentary, to substantiate their cases. Learned trial court decreed the suit with the finding that the deity is in possession of the suit land for more than 100 years and as such has perfected title by way of adverse possession. The plaintiff is entitled to recovery of possession of the suit land encroached upon by defendant no.1 after demolishing the houses built by defendant no.1. Accordingly, it directed defendant no.1 to remove the houses, which were built over the suit land. Unsuccessful defendant no.1 filed R.F.A.No.13/04 (TA 27/01 GDC) before 2nd Additional District Judge, Berhampur, which was eventually dismissed.
5. The Second Appeal was admitted on the following substantial questions of law :
“1. Whether the courts below are justified in entertaining the suit of the deity without considering the specific plea of the defendant that in absence of a mandatory notice as contemplated in the Code of Civil Procedure and the notice as provided under section 349 of the Orissa Municipal Act, the suit is not maintainable ?
2. Whether the courts below are justified in declaring the suit land, which was ‘Sarbasadharan’ as per the ROR, to be the property of the plaintiff-deity in absence of any documentary evidence regarding valid acquisition of the same by the plaintiff-deity?”
6. Heard Mr. Ajit Kumar Choudhury, learned Advocate for the appellant and Mr. Budhadev Routray, learned Senior Advocate along with Mr. Subhadatta Routray, learned Advocate for respondent no.1 along with Mr. R.P. Mohapatra, learned Additional Government Advocate for respondent no.2.
7. Mr. Choudhury, learned Advocate for the appellant submitted that the suit land is Gramkantha Paramboke. The same was transferred to the Berhampur Municipality, defendant no.1 and, accordingly notification was issued by the Government of Orissa. The notification was published in the Orissa Gazette on 14.2.1964, Ext.C. The plaintiff has no title over the suit land. The deity cannot claim title by way of adverse possession. The Municipality has constructed the shopping complex over the land in question. He further contended that the suit land has been recorded as Sarbasadharan. To buttress submission, he placed reliance on a decision of this Court in the case of State of Orissa and another v. Sri Sri Radha Govinda Swain, 2018(I) ILR-CUT- 305.
8. Mr. Routray, learned Senior Advocate for respondent no.1 submitted that deity is in possession of the land for more than 100 years. The archak-trustee of the deity had constructed the shop rooms. During national emergency in the year 1976-77, the shop rooms were demolished without any notice. Thereafter, defendant no.1 unauthorisedly made construction over the land of the deity. Bot
