IMPORTANT POINT
Possession of immovable property cannot be transferred by mere oral gift, and a decree for permanent injunction cannot be granted without clear evidence of legal possession, especially when the state is the owner of the land.

JUDGMENT

D. Dash, J.

The Appellant, by filing this Appeal under Section-100 of the Code of Civil Procedure, 1908 (for short, 'the Code'), has assailed the judgment and decree dated 26.12.2022 and 05.01.2023 respectively passed by the learned Additional District Judge, Kuchinda in R.F.A. No.07 of 2017.

The Respondent No.1 as the Plaintiff had filed the suit for declaration of his possessory title over the suit land and issuance of permanent injunction against the present Appellant (Defendant No.3) from entering into the suit land, constructing any house over there as also interfering in the peaceful possession of the Plaintiff over the same.

The suit having been decreed, this Appellant (Defendant No.3) having suffered from the same have carried the Appeal under section-96 of the Code, which has also been dismissed. Hence, the present Second Appeal.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court.

3. Plaintiff's Case: -

One Katsu Ranbida died had leaving behind two daughters namely, Ganga and Jamuna. Ganga and her husband died issueless.

Subasini is the sister of Jamuna's husband who had died leaving behind the Plaintiff as his son. The suit land belongs to the State and stood recorded as such in the record of right. It is stated that the same was in possession of Kastu Ranbida and therefore, the Settlement Authority upon enquiry, ascertaining the possession of the field had noted the said possession of Kastu in the remark column of record of right. After death of Kastu, his two daughters Ganga and Jamuna continued to possess the suit land. Since they had no issue, they orally gifted the suit land in favour of the Subasini who is the sister of the husband of Jamuna and she is the mother of the Plaintiff. So, it is said that Subasini came to possess the suit land being so gifted and having accepted the said gift and thereafter, the Plaintiff is the possession of the same having got it from his mother.

The Defendant No.3 who has no right, title, interest and possession over the suit is said to have trespassed over the same on a fine morning and for that the Plaintiff when reported the matter to the Tahasildar, Kuchinda, the local R.I. has been directed to demarcate the suit land. Thereafter, the encroachment proceeding was initiated against Defendant No.3 and the Plaintiff also initiated the proceeding under section-145 of the Cr.P.C., when the Defendant No.3 proceeded with construction. The Defendant No.3 since did not obey the order of restraint, the Plaintiff had to file the suit.

4. The Defendant No.2 has submitted in the written statement that the wife of the Defendant No.3 had put up unauthorized structure of the Government land and therefore, proceeding under the Orissa Prevention of Land Encroachment Act, 1972 (for short hereinafter called as "the OPLE Act') has been initiated being numbered as Encroachment Case No.32 of 2015 and therein stopping of construction, order had been passed and finally, the wife of Defendant No.3 had been directed to remove from the said encroachment and make it free or else to face legal consequence through the process of law.

The Defendant No.3 did not appear in the suit and was set exparte.

5. The Trial Court on the above rival pleadings having framed in total six (6) issues, upon examination of evidence and evaluation of the same has arrived at the following findings: -

(i) the illegal possession note in favour of Kastu Ranbida will not ripe into possessory title and the Plaintiff cannot acquire title by way of adverse possession over the suit land; and

(ii) in view of the evidence on record, the possession of the Plaintiff having been found over the suit land, the Defendant No.3 has been found to have made trespass over the same and therefore, the Plaintiff is entitled to decree for injunction.

6. In the First Appeal filed by the Defendant No.3, these findings have been affirmed