Orissa High Court
SA--140/1990 (17 May, 2017)
PRESENT: THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 12.05.2017 :
Date of judgment: 17.05.2017
Dr. A.K.Rath, J
This is plaintiffs appeal against a reversing judgment in a suit for declaration of right, title and interest and permanent injunction.
2. The suit schedule land is a tank and its ridge appertaining to Khata No.170, Plot Nos.617 and 618, area Ac.3.30 dec. and Ac.0.41 dec. of Mouza-Sikuan Kular in the district Kalahandi.
3. The case of the plaintiff is that one Chandra Sunari was the original owner of the suit tank. He had excavated the tank for the purpose of irrigation and pisciculture. There was partition amongst the sons of Chandra in the year 1930. The suit tank fell to the share of Lambodar. After his death, the plaintiff being the successor, inherited the suit property. The plaintiff is in possession of the suit tank peacefully, continuously and openly for more than 40 years and as such, perfected title by way of adverse possession. He came to know that the suit tank had been recorded in the name of the State Government under Rakhit Khata. In spite of his protest, the Block Development Officer, Khariar, defendant no.3 leased out the suit tank to defendant no.4. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.
4. Defendants filed written statement denying the assertions made in the plaint. It is pleaded that Chandra Sunari had no semblance of right, title and interest over the suit reservoir. He had not constructed the same. The tank is recorded in the name of the State of Orissa under Rakhit Khata. The assertion of the plaintiff that he was in possession of the suit tank for more than 40 years peacefully and perfected title by way of adverse possession had been specifically denied. The suit reservoir had been transferred to the Duajhar Gram Panchayat on 11.6.1956 by the Government of Orissa in the Revenue Department. Neither the plaintiff nor his forefather had ever possessed the suit tank. The BDO, Khariar, defendant no.3, had leased out the suit tank to defendant no.4.
5. On the inter se pleadings of the parties, learned trial court struck six issues. To substantiate the case, the plaintiff had examined two witnesses and on his behalf, one document had been exhibited. On behalf of the defendants, two witnesses had been examined and five documents exhibited. Placing reliance on Jamanbandi register, vide Ext.1, learned trial court came to hold that the suit land was in possession of Chandra Sunari. He excavated the suit tank. He was in possession of the same. It further held thatevidence of D.W.1 shows that the suit property belongs to the State and has been recorded in the Rakhita Khata. The plaintiff does not dispute the claim of the defendants. The suit tank was in possession of the plaintiff since the time of his grand-father. The plaintiff had perfected title by way of adverse possession. Held so, it decreed the suit.
6. Assailing the judgment and decree of the learned trial court, the State of Orissa filed Title Appeal No.13/14 of 1986-89 before the learned Sub-Judge, Nawapara. The learned appellate court, on a threadbare analysis of the evidence, both oral and documentary as well as pleadings, came to hold that Plot Nos.617 and 618 stands recorded in the name of the State of Orissa as reserve. Ext.B-permanent register of sairat shows that Plot Nos.117 and 118 measuring Ac.3.30 decimals and Ac.0.41 decimals of MauzaSikuarakala which are tank and ridge had been transferred to the Gram Panchayat for pisciculture. The same is maintained by the Tahasil Office. Ext.C discloses that the suit tank had been transferred to Dua Jhar Gram Panchayat for pisciculture. Ext.E- register maintained by the BDO discloses that the tank had been transferred to the Gram Panchayat. It further held that the suit tank is the property of the State and plaintiff has no semblance of right, title and interest over the same. Held so, learned appellate court allowed the appeal. It is apt to state here that during pendency of the second appeal, the appellant no.1 died, whereafter his legal representatives have been brought on record.
7. The second appeal was admitted on the following substantial question of law enumerated in Ground No.(ii). The same is -
(ii) Whether the learned lower appellate court can ignore the principles laid down inarticles 64 and 65 of the limitation act to non-suit the plaintiff. In the facts and circumstances of this case the suit land having been recorded in the name of plaintiffs grand father since 1922-23 (Ext.1) and he being in continuous possession since then, the plaintiff has acquired title to the suit property. In course of hearing the following substantial question of law was framed.
1. Whether the plaintiff can maintain the suit for declaration of title on the basis of adverse possession in the absence of date of entry into the suit land ?
8. Mr. Balakrishna, learned counsel for the appellants, submitted that Chandra Sunari was the original owner of the suit land. He had excavated the tank over the suit property for the purpose of irrigation and pisciculture. In the family partition amongst his sons, the suit tank fell to the share of the father of the plaintiff. After the death of his father, the plaintiff inherited the suit land along with the other properties. Jamanbandi, Ext. 1, shows that the suit lands as per 1922-23 settlement records have been improved by Chandra Sunari. There is no reason to disbelieve the same. He further submitted that the plaintiff was in possession over the suit land. He was not dispossessed from the suit land at any point of time and as such, he has perfected title by way of adverse possession. There is no evidence on record that the suit tank was leased out to defendant no.4.
9. Per contra, Mr. Mishra, learned Addl. Standing Counsel, submitted that the suit land has been recorded in the name of the Government under Rakhit Khata. The suit lands are the property of the Government. There is no material on record that the plaintiff has perfected title by way of adverse possession. The suit tank is recorded in the name of the State and the same was leased out to defendant no.4. The plaintiff has no semblance of right, title and interest over the same.
10. Before proceeding further, it is apt to refer to the decision of the apex Court in the case of Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779. The apex Court at para 11 of the report observed as under :- "In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period." The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Emphasis laid)
11. The suit land is a big tank having area of Ac.3.71 dec. The same has been recorded in the name of the State Government. It was transferred to Dua Jhar Gram Panchayat. The tank was leased out to defendant no.4 to allot the job work under the food for work programme. There is no pleading with regard to the date of entry of the plaintiff into the suit land. Mere possession of the suit land for long time is not suffice to hold that the plaintiff had perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved. Adverse possession is a mixed question of fact and law. On a threadbare analysis of the evidence available on record, both oral and documentary as well as pleadings, learned appellate court has negatived the plea of adverse possession of the plaintiff over the suit tank. Findings recorded by the learned appellate court cannot be said to be perverse. The substantial questions of law are answered accordingly.
12. Before parting with the case, it is apt to refer to a decision of the apex Court in the case of Jagpal Singh and others v. State of Punjab and others (2011) 11 SCC 396. The apex Court has expressed its concern over the public utility on lands in villages used for centuries used for the common benefit of the villagers of the village and held thus:-
2.Since time immemorial there have been common lands inhering in the village communities in India, variously called gram sabha land, gram panchayat land, (in many North Indian States), shamlat deh (in Punjab etc.), mandaveli and poramboke land (in South India), Kalam, Maidan, etc., depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village such as ponds for various purposes e.g. for their cattle to drink and bathe, for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation ground or graveyards, etc. These lands stood vested through local laws in the State, which handed over their management to Gram Sabhas/Gram Panchayats. They were generally treated as inalienable in order that their status as community land be preserved. There were no doubt some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of this land to landless labourers and members of the scheduled castes/tribes, but this was only to be done in exceptional cases.
3.The protection of commons rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, inChigurupati Venkata Subbayya vs. Paladuge Anjayya, 1972(1) SCC 521 this Court observed : "23. It is true that the suit lands in view of section 3 of the estates abolition act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away.. The rights of the community over the suit lands were not created by the principal or any other landholder. Hence those rights cannot be said to have been abrogated by section 3(c) of the estates abolition act. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with their original character, for personal aggrandisement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs. Held so, the apex Court issued the following directions:-
2.Since time immemorial there have been common lands inhering in the village communities in India, variously called gram sabha land, gram panchayat land, (in many North Indian States), shamlat deh (in Punjab etc.), mandaveli and poramboke land (in South India), Kalam, Maidan, etc., depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village such as ponds for various purposes e.g. for their cattle to drink and bathe, for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, ramlila, cart stands, water bodies, passages, cremation ground or graveyards, etc. These lands stood vested through local laws in the State, which handed over their management to Gram Sabhas/Gram Panchayats. They were generally treated as inalienable in order that their status as community land be preserved. There were no doubt some exceptions to this rule which permitted the Gram Sabha/Gram Panchayat to lease out some of this land to landless labourers and members of the scheduled castes/tribes, but this was only to be done in exceptional cases.
3.The protection of commons rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, inChigurupati Venkata Subbayya vs. Paladuge Anjayya, 1972(1) SCC 521 this Court observed : "23. It is true that the suit lands in view of section 3 of the estates abolition act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away.. The rights of the community over the suit lands were not created by the principal or any other landholder. Hence those rights cannot be said to have been abrogated by section 3(c) of the estates abolition act. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with their original character, for personal aggrandisement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs. Held so, the apex Court issued the following directions:-
Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/ Poramboke/ Shamlat land and these must be restored to the Gram Sabha/ Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.
13. In the result, the appeal is dismissed. No costs. DR. A.K.RATH, J Orissa High Court, Cuttack. The 17th May, 2017/Pradeep.
Source : https://www.casemine.com/judgement/in/5927089f4a93264758bc2f2e
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