Monday, 1 July 2019

Whether plaintiff can get title on government land by adverse possession if he pays penalty in encroachment case?

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. Ext. 3, rent receipt, shows that the father of the plaintiffs paid penalty in Encroachment Case No. 1/82. This Court in the case of Abu Bakkar Habib (MANU/OR/0020/2017 : AIR 2017 Ori 36) held that when penalty is paid, the plaintiff admits the title of the State. The possession is not hostile to the real owner and amount to a denial of title to the property claimed.

12. The plaintiffs have failed to prove the date of entry into the suit land. Their father paid the penalty. The element of hostile animus is absent. The findings of the courts below with regard to acquisition of title by the plaintiffs are perverse. The substantial question of law has been answered accordingly.

IN THE HIGH COURT OF ORISSA

S.A. No. 7 of 1997

Decided On: 25.01.2019

State of Orissa  Vs.  Jaladhar Sha and Ors.

Hon'ble Judges/Coram:
Dr. Akshaya Kumar Rath, J.

Citation: AIR 2019 Orissa 48


1. Defendant Nos. 1 and 2 are the appellants against a confirming judgment.

2. Plaintiffs-respondent Nos. 1 to 4 instituted T.S. No. 13 of 1985 in the court of the learned Subordinate Judge, Anandapur for declaration of title on the basis of adverse possession. The case of the plaintiffs was that the suit land was a piece of Government land. Their grandfather reclaimed the suit land and converted it to a paddy field in the year 1935. He was in possession of the said land. Thereafter, the plaintiffs are in continuous cultivating possession of the suit land to the knowledge of the State. The R.I., being instigated by some persons of the locality, submitted his report to the Tahasildar, Anandapur, defendant No. 2, with regard to encroachment of the suit land by the plaintiffs. Thereafter, Encroachment Case No. 1/82 was initiated against them. Order of eviction was passed. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra.

3. The defendant Nos. 1 and 2 filed written statement denying the assertions made in the plaint. The case of the defendant Nos. 1 and 2 was that the suit land belongs to the State of Orissa. The plaintiffs encroached upon the suit land in the year 1980. The R.I. submitted its report, whereafter the Tahasildar, Anandapur, defendant No. 2, initiated Encroachment Case No. 1/82. Order of eviction was passed. Penalty was imposed. The plaintiffs paid the penalty. Thereafter, the plaintiffs filed Encroachment Appeal No. 9/84, which was dismissed. The suit land was recorded as Jalasaya under the name of Chatara Pokhari in Rakhit khata. Padan Sha, father of the plaintiffs, filed an affidavit before the defendant No. 2 on 15.4.1983 stating therein that he had been evicted from the suit land.

4. Stemming on the pleadings of the parties, learned trial court struck six issues. Learned trial court decreed the suit holding inter alia that no evidence was adduced from the side of the defendants to prove eviction in encroachment case. There is no document on record to show the plaintiffs were in possession prior to the year 1980. The oral evidence of plaintiffs that they are in possession of the land since 35 years is not rebutted by the State. Source of information of Govt. for initiation of encroachment case has not proved. The father of the plaintiffs paid penalty, which is evident from Ext. 3. The plaintiffs have perfected their title by way of adverse possession. The unsuccessful defendant Nos. 1 and 2 filed T.A. No. 40 of 1988 before the learned District Judge, Keonjhar, which was eventually dismissed. It is apt to state here that during pendency of the second appeal, the respondent Nos. 3 and 5 died. Their legal heirs have been substituted.

5. The second appeal was admitted on the following substantial question of law.

"If the finding of both the courts below about plaintiffs' acquisition of title by adverse possession is legally sustainable?"
6. Heard Mr. S. Mishra, learned A.S.C. for the appellants and Mr. D.P. Mohanty along with Miss M. Pal, learned Advocates for the respondents.

7. Mr. Mishra, learned A.S.C. for the appellants, submitted that the date of entry into the suit land has not been mentioned in the plaint. Continuous possession howsoever long will not become adverse unless there is hostility against the true owner. The plaintiffs had not pleaded when their possession became adverse to the Government. The plaintiffs paid penalty in the encroachment case as would be evident from rent receipt, Ext. 3. The same amounts to admitting the title of the State. To buttress the submission, he placed reliance to the decision of this Court in the case of State of Orissa and another v. Abu Bakkar Habib, (MANU/OR/0020/2017 : 2017 SCC Online Ori 37 : AIR 2017 Ori 36).

8. Per contra, Mr. Mohanty, learned Advocate for the respondents, submitted that the grandfather of the plaintiffs entered into the suit land in the year 1935. He was in possession of the same. Thereafter the plaintiffs are in possession of the land peacefully, continuously and with the hostile animus to the defendants and as such perfected title by way of adverse possession. Neither the affidavit, nor the orders passed by the encroachment proceeding had been exhibited by the defendants. Both the courts below concurrently held that the plaintiffs have perfected title by way of adverse possession. There is no perversity in the said finding.

9. Admittedly the suit land is a Govt. land. It was recorded as Jalasaya. Mere possession of the suit land for long time is not suffice to hold that the plaintiffs have perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved.

10. In Karnataka Board of Wakf v. Govt. of India and others MANU/SC/0377/2004 : (2004) 10 SCC 779, the Apex Court held:

"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. Ext. 3, rent receipt, shows that the father of the plaintiffs paid penalty in Encroachment Case No. 1/82. This Court in the case of Abu Bakkar Habib (MANU/OR/0020/2017 : AIR 2017 Ori 36) held that when penalty is paid, the plaintiff admits the title of the State. The possession is not hostile to the real owner and amount to a denial of title to the property claimed.

12. The plaintiffs have failed to prove the date of entry into the suit land. Their father paid the penalty. The element of hostile animus is absent. The findings of the courts below with regard to acquisition of title by the plaintiffs are perverse. The substantial question of law has been answered accordingly.

13. Resultantly, the impugned judgments are set aside. The appeal is allowed. The suit is dismissed. There shall be no order as to costs.


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