A plaintiff in adverse possession cannot seek a declaration of ownership and can only use adverse possession as a defense when involved as a defendant in proceedings.

JUDGMENT :

A.K. Rath, J.

This appeal by the plaintiff assails the affirming judgment passed by the learned Ad hoc Additional District Judge (FTC), Gunupur in R.F.A.No.10 of 2005.

2. Case of the plaintiff is that the suit land was recorded in the name of the defendants. One Sasibhusan Bebarta was in possession of the suit land since 1940. He constructed a thatched house over the same. After his death, his son Krishna Prasad Bebarta leased out that thatched house in favour of P. Nileeya, grandfather of the plaintiff, by means of a lease deed dated 14.1.1968 and delivered possession. P.Nileeya along with his daughter and son-in-law was residing in the suit house. He used to pay monthly rent to Krishna Prasad Bebarta. After death of P.Nileeya, his daughter, mother of the plaintiff, remained in possession of the suit house. After death of her mother, she is residing therein with his family members. She has acquired title by way of adverse possession. She has constructed a pucca house over the same. She used to pay holding tax to the N.A.C. The defendants have no semblance of right, title and interest over the same. While matter stood thus, the Tahasildar, Gunupur, defendant no.2 initiated an Encroachment Case no.136/83 against her. On 30.1.2004, defendant no.2 threatened her to vacate the same. With this factual scenario, she instituted the suit for declaration of title by way of adverse possession and permanent injunction.

3. Defendant no.2 entered contest and filed written statement pleading, inter alia, that the plaintiff has no semblance of right, title and interest over the suit house. She is not in continuous possession of the suit land. The suit land has been recorded in the Government khata. The plaintiff has illegally encroached upon the suit land for which encroachment case was initiated against her. Order of eviction was passed.

4. On the inter se pleadings of the parties, learned trial court framed five issues. Parties led evidence, oral and documentary. Learned trial court came to hold that the plaintiff failed to prove that she was in possession of the suit land for more than statutory period. She had not acquired title by way of adverse possession. Held so, it dismissed the suit. Felt aggrieved, the plaintiff filed R.F.A.No.10 of 2005 before the learned Ad hoc Additional District Judge (FTC), Gunupur, which was eventually dismissed.

5. Heard Ms.Pragyana Paramita Mulia on behalf of Mr.T.K.Pattnaik, learned Advocate for the appellant.

6. Ms.Mulia, learned Advocate for the appellant submits that the grandfather of the plaintiff was in possession of the suit land since 1968 by means of a lease deed dated 14.1.1968 executed in his favour. After death of her mother, the plaintiff is residing with her family members in the house constructed over the suit land peacefully, continuously and with the hostile animus to the defendants for more than statutory period and, as such, perfected title by way of adverse possession.

7. The question does arise as to whether the plaintiff can institute the suit for declaration of title by way of adverse possession ?

8. Taking a cue from the decision of the apex Court in the case of Gurdwara Sahib v. Gram Panchayat Village Sirthala and another, (2014) 1 SCC 669, this Court in Nabin Chandra Mohanta v. State of Orissa (R.S.A. No.396 of 2004 disposed of on 22.02.2019) held :

"10. In Gurdwara Sahib, the plaintiff-appellant filed the suit for decree of declaration to the effect that it had become the owner of the suit property by adverse possession, correction of ROR and permanent injunction. The suit was partly decreed by the trial court granting relief of injunction. The first appeal against that part of the judgment, whereby relief of declaration was denied was dismissed by the Additional District Judge. In the second appeal, the relief of declaration by way of adverse possession was denied holding that such a suit is not maintainable. The second appeal was dismissed. The matter travelled to the Apex Co