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
