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2018 Supreme(Ori) 31
IN THE HIGH COURT OF ORISSA : CUTTACK
A.K. RATH, J.
Laxmi Charan Das - Appellant
Versus
State of Orissa and another - Respondents
R.S.A. No. 281 of 2003
Decided On : 05-05-2018
Advocate Appeared:
For the Appellant : Mr. Anup Kumar Bose, Mr. P.K. Das
For the Respondents: Mr. Rama Prasad Mohapatra
Sec.16 of the O.P.L.E. Act does not bar the jurisdiction of the civil court to decide a suit regarding land disputes.
Headnote:
Adverse Possession - Land Dispute - Orissa Prevention of Land Encroachment Act, 1972 - Sec.16 - Sec.16 of the O.P.L.E. Act does not bar the jurisdiction of the civil court to decide the suit - The plaintiff failed to prove adverse possession - Suit land not identifiable with the sale deed - Civil court has jurisdiction to adjudicate the question of title
Fact of the Case:
The plaintiff appealed against a confirming judgment in a suit for declaration of title and permanent injunction regarding a disputed land. The plaintiff claimed ownership based on a registered sale deed from 1913 and adverse possession. The defendants denied the plaintiff's assertions and claimed the land as government property.
Finding of the Court:
The court found that the plaintiff failed to prove his title or adverse possession. The court also held that the civil court has jurisdiction to decide the suit despite the provisions of Sec.16 of the O.P.L.E. Act.
Issues: The issues included the jurisdiction of the civil court under Sec.16 of the O.P.L.E. Act and the plaintiff's possession of the suit land.
Ratio Decidendi: The court held that Sec.16 of the O.P.L.E. Act does not bar the jurisdiction of the civil court to decide the suit. The plaintiff's claim of adverse possession was not proven, and the suit land was not identifiable with the sale deed.
Final Decision: The appeal was dismissed, and no costs were awarded.
JUDGMENT :
A.K. Rath, J.
This is a plaintiff’s appeal against confirming judgment. The suit was for declaration of title and permanent injunction.
2. An area of Ac.0.050 cents of land appertaining to Survey No.289/948, P.O./P.S./Tahasil-Purushottampur in the district of Ganjam is the subject-matter of dispute.
3. The case of the plaintiff was that the suit land was originally recorded as ‘Gramakantha Paramboke’. His grandfather, Narayan Das, had purchased the suit land by means of a registered sale deed no.1302 dated 06.06.1913 from one Govinda Das. His grandfather was in possession of the suit land. Thereafter, the suit land is in possession of his family members. He had constructed a thatched house over the suit land. In the year 1978, he installed a mill over the suit land. While matter stood thus, the Tahasildar, Purushottampur, defendant no.2, initiated Encroachment Case No. 123 of 1979 against him. Order of eviction was passed. Assailing the order, he filed O.P.L.E. Appeal No. 06 of 1984 before the Sub-Collector, Ganjam, Chatrapur. The appeal was dismissed. On 16.10.1992, he made an application to defendant no.2 to settle the suit land in his favour. But no order has been passed. Since he is in continuous possession of the suit land, the land ought to have been settled in his favour. He is in possession of the suit land peacefully, continuously and with the hostile animus of the defendants for more than the statutory period and as such, perfected title by way of adverse possession. The order of eviction was bad in law. In the Hal Settlement R.O.R., the suit land had been wrongly recorded as ‘Anabadi’. With this factual scenario, he instituted the suit seeking the relief mentioned supra.
4. The defendants entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendants is that the suit land is the Government land. The same was recorded as ‘Anabadi’ in the settlement of the year 1978. The plaintiff has no semblance of right, title and interest over the suit land.
5. Stemming on the pleadings of the parties, learned trial court struck five issues. Parties led evidence. Learned trial court dismissed the suit with the finding that the suit land is the Government land. The plaintiff failed to prove his title over the same. There is no mention of patta number and survey number in the sale deed, vide Ext.1. Ext.1 does not co-relate to the suit land. The plaintiff had failed to prove that he had perfected title by way of adverse possession. Order of eviction was passed by the authority under the Orissa Prevention of Land Encroachment Act (“O.P.L.E. Act”). In view of the bar contained in Sec.16 of the O.P.L.E. Act, the suit is not maintainable. Unsuccessful plaintiff challenged the judgment and decree before the learned Civil Judge (Senior Division), Chatrapur in T.A. No. 08 of 1995, which was eventually dismissed.
6. This appeal was admitted on the following substantial questions of law:-
“(i) Whether the civil court has jurisdiction to decide the suit out of which the appeal arises in view of the provisions of section 16 of the Orissa Prevention of Land Encroachment Act, 1972 ?
(ii) Whether the conclusion of the trial court and the first appellate court that the plaintiff was not in possession of the suit land is correct in law ?”
7. Heard Mr. Anup Kumar Bose, learned counsel along with Mr. P.K. Das, learned counsel for the appellant and Mr. Rama Prasad Mohapatra, learned Additional Government Advocate for the respondents.
8. Mr. Bose, learned counsel for the appellant argued with vehemence that notwithstanding the bar contained in Sec. 16 of the O.P.L.E. Act, the suit is maintainable. The grandfather of the plaintiff purchased the suit land by means of a registered sale deed vide Ext.1. Since the time of his grandfather, the suit land is in possession of the family members of the plaintiff. The plaintiff is in possession of the suit land since the time of his forefathers. In the sale deed
