Sec. 16 of the O.P.L.E. Act does not bar the civil court from adjudicating the question of title. The burden of proof lies with the party claiming adverse possession.

JUDGMENT :

A.K. Rath, J.

This appeal is by the plaintiff against an affirming judgment. The suit was for declaration of right, title and interest and permanent injunction.

2. The case of the plaintiff is that he is in possession of the suit schedule land for the last 45 years to the knowledge of the defendants. He constructed a hotel and residential building over a portion of the land. He is residing with his family members in the house. Defendant no.2 initiated Encroachment Case No.56/72 against him. In the said proceeding, notice had been served on him. Thereafter, another Encroachment Case No.38/84 was initiated. The case was dropped. In Encroachment Case No. 56/72, defendant no.2 passed an order of eviction on 28.11.1986. Initiation of the said encroachment case is illegal. The defendant no.2 has no jurisdiction to pass the order of eviction. The plaintiff apprehended that the defendant might demolish the structures standing on the disputed lands taking advantage of the illegal order passed in the encroachment proceeding. With this factual scenario, he instituted the suit seeking the relief mentioned supra.

3. Defendants filed a joint written statement denying assertions made in the plaint. It was pleaded that the disputed Sabik plot no.519 situates in the Tuesday Weekly market of Belgaon prior to 1936. Entire Sabik plot no.519 measuring Ac.0.92 dec. appertaining to Sabik khata no.7 being the market area, was transferred to Siskela Grama Panchayat in the year 1954 for its management. The Gram Panchayat has been managing the market. The Gram Panchayat granted temporary lease of portions thereof for temporary stalls. After reorganisation of Grama Panchayat, jurisdiction village-Belgaon again remained under Siskela Grama Panchayat. The weekly market area had been transferred in favour of Siskela Grama Panchayat for management by the Sub-Collector, Titilagarh. Siskela Grama Panchayat granted temporary lease of the disputed land of Ac.0.04 dec. of plot no.519 to the plaintiff on 29.03.1974 on monthly ground rent of Rs.5/-. The plaintiff agreed to be evicted therefrom by the Grama Panchayat in case of his failure to pay the ground rent on the 30th day of each month. In the years, 1974, 1975, 1980, 1981, 1983 and 1984, the plaintiff had paid ground rent for the said land to the Grama Panchayat. He had not claimed ownership in respect of the disputed lands appertaining to Sabik Plot No. 519. Sabik plot no.338 appertains to sarbasadharan Sabik Khata no. 7. The plaintiff was not in possession of the disputed lands for 30 years. He admitted in Encroachment Case No. 56/72 that he is in possession of the case lands since 1964-65. He had never acquired title by way of adverse possession. In Encroachment Case No. 56/72, notice was duly served on him on 16.05.1972. Eviction notice in Form No.’Kha’ had also been served on him on 04.03.1978. The encroachment proceeding is legal and valid. No appeal or revision had been filed against the order of eviction dated 04.03.1978 passed in the Encroachment Case No. 56/72. The order of eviction passed in the encroachment case was not liable to be challenged in the civil court. The suit was not maintainable. Plaintiff was not landless person.

4. Stemming on the pleadings of the parties, learned trial court struck twelve issues. Both parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that the suit was not maintainable under Sec.16 of the Orissa Prevention of Land Encroachment Act (in short, “the O.P.L.E. Act”). The plaintiff had not acquired title by way of adverse possession. The unsuccessful plaintiff challenged the judgment and decree of the learned trial court before the learned Additional District Judge, Titilagarh in T.A. No. 34/10 of 1992, which was eventually dismissed.

5. Heard Mr. Alekh Chandra Mohanty, learned counsel for the appellant and Mr. Swayambhu Mishra, learned A.S.C. for the respondents.

6. Mr. Mohanty, learned counsel for the appellan