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2019 Supreme(Ori) 79
IN THE HIGH COURT OF ORISSA, CUTTACK
A.K. RATH, J.
Bisakha Pradhan And Another — Appellant
Versus
Collector, Cuttack And Another — Respondent
RSA No. 244 of 2009
Decided on : 04-04-2019
Advocate Appeared:
For the Appellant :Mr. Digambar Sethi, Advocate
A suit seeking declaration of adverse possession as a means to claim ownership is not maintainable, and a prayer to set aside the consolidation ROR is necessary in a suit for permanent injunction.
Headnote:
Adverse Possession - Property Dispute - Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 - Sec.51, Orissa Estates Abolition Act - Sec.8(2) - Gurdwara Sahib v. Gram Panchayat Village Sirthala (2014) 1 SCC 669 - State of Orissa v. Sibasankar Ray, 2017 (II) CLR 87
Fact of the Case:
Plaintiffs sought declaration of title by adverse possession and permanent injunction for a land recorded in their names but possessed by another family. Defendants claimed the suit was barred under Sec.51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972.
Finding of the Court:
Trial court dismissed the suit, finding that the plaintiffs had not perfected title by adverse possession. The appeal was also dismissed, and the court held that the suit was not maintainable due to absence of prayer to set aside the consolidation ROR.
Issues: Validity of claim of adverse possession, applicability of Sec.51 of the OCH&PFL Act, and maintainability of the suit without a prayer to set aside the consolidation ROR.
Ratio Decidendi: The court cited the Gurdwara Sahib case, stating that a suit seeking declaration of adverse possession as a means to claim ownership is not maintainable. Additionally, the court referred to State of Orissa v. Sibasankar Ray, emphasizing the need for a prayer to set aside the consolidation ROR in a suit for permanent injunction.
Final Decision: The appeal was dismissed as it did not involve any substantial question of law, and no costs were awarded.
JUDGMENT :
A.K. Rath, J.
Plaintiffs are the appellants against a confirming judgment in a suit for declaration of title by way of adverse possession and permanent injunction.
2. Case of the plaintiff is that in the settlement ROR of the year 1929, the suit land was recorded in the names of Kinei Sethi son of Mani Sethi, Muli Sethi son of Sanei Sethi, Pandaba Sethi and Bhima Sethi as desahata dhoba jagir status. The names of Jai Pradhan, Gobinda Pradhan, Dai Pradhan and Sindhu Pradhan son of Burundu Pradhan had been reflected in the remarks column of the ROR. Though the land was recorded in the names of Sethi family, but the same was in possession of Pradhan family. One of the co-sharers, namely, Dhadi Pradhan son of Jai Pradhan sold the suit land and other lands to another co-sharer Govinda Pradhan son of Burundu Pradhan by means of a registered sale deed dated 6.7.1954. Govinda Pradhan could not take any steps to record the land in his favour. In the settlement ROR of 1970, the land has been recorded in the name of the Government. Note of possession of Govinda Pradhan has been reflected in the remarks column of the ROR. In the consolidation ROR, the land has been recorded in the name of Government under consolidation khata no.636, plot no.458. Plaintiffs are in possession of the suit land peacefully, continuously and with hostile animus to the defendants for more than the statutory period and as such, perfected title by adverse possession. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.
3. Defendants entered contest and filed a written statement pleading, inter alia, that the suit is barred under Sec.51 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short, "the OCH&PFL Act"). Kissam of the land is "Abadjogya Anabadi". It is reserved for communal purposes.
4. On the inter se pleadings of the parties, learned trial court struck eight issues. Parties led evidence, oral and documentary. Learned trial court dismissed the suit holding, inter alia, that the plaintiffs have not perfected title by way of adverse possession. Unsuccessful plaintiffs filed appeal before the learned District Judge, Cuttack, which was subsequently transferred to the learned Ad hoc Addl. District Judge, Fast Track Court No.IV, Cuttack and renumbered as RFA No.47 of 2006. The appeal was eventually dismissed.
5. Heard Mr. Digambar Sethi, learned counsel for the appellants.
6. Mr. Digambar Sethi, learned counsel for the appellants submits that in 1929 settlement ROR, the suit land was recorded in the names of Kinei Sethi son of Mani Sethi, Muli Sethi son of Sanei Sethi, Pandaba Sethi and Bhima Sethi, but in the remarks column, the names of Jai Pradhan, Gobinda Pradhan, Dai Pradhan and Sindhu Pradhan son of Burundu Pradhan had been reflected. They were in peaceful and continuous possession of the suit land. The land originally belonged to ex-intermediary. Status of the land is desahata dhoba jagir. After vesting of the estate, the OEA Collector could have settled the land in favour of the ancestors of the plaintiffs under Sec.8(2) of the Orissa Estates Abolition Act (in short, "OEA Act"). Plaintiffs are in possession of the suit land peacefully, continuously and with hostile animus to the defendants for more than the statutory period and as such, perfected title by way of adverse possession.
7. There is no pleading that the ancestors of the plaintiffs were the tenants under the ex-intermediary. In the settlement ROR of the year 1929, the suit land was recorded in the name of Kinei Sethi son of Mani Sethi, Muli Sethi and others as desahata dhoba jagir status. Neither the ancestors of the plaintiffs, nor the plaintiffs were rendering service as village servants. In view of the same, sub-section (2) of Sec.8 of the OEA Act cannot come to rescue of the plaintiffs.
8. The next question arises whether the plaintiffs can institute the suit for declaration of title by way of adverse possess
