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Case Number
Attorney(S)
  • S.Mohanty
  • S.D.Das
Judges
  • R.N Misra
  • B.K Ray, JJ.
Acts
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Citation Codes
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citation codes
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Attorney(S)
  • S.Mohanty
  • S.D.Das
Judges
  • R.N Misra
  • B.K Ray, JJ.
Acts
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Smart Summary

Structured Summary of the Opinion (R.N. Misra, J.)

Factual and Procedural Background

The plaintiff purchased 86 decimals of land (part of plot No. 57, Mauza Kaki) by a registered sale deed dated 28-11-1970 (Ext. 2) from Dalapati Hantal, who had earlier purchased it from Hadi Hantal in February 1969. The plaintiff claims to have obtained permission under the Orissa Land Reforms Act, remained in possession and constructed an asbestos-roofed house. On 14-4-1972, the Additional Tahsildar of Sunabeda initiated proceedings under the Orissa Prevention of Land Encroachment Act, 1972 alleging that 8 decimals (a portion of the 86 decimals) had already been acquired under the Land Acquisition Act (I of 1894) by the State Government and directed eviction of the plaintiff as an encroacher. The plaintiff's appeals under that statutory process were dismissed, and he instituted a civil suit for declaration of title and injunction restraining the defendant from disturbing his possession.

The defendant (and the lower courts) contended that the land belonged to Raghunath Hantal, had been notified for acquisition (92 decimals including the disputed area) for the purpose of a MIG factory at Sunabeda, and that a prior suit (M.J.C. No. 109 of 1964) had held that Hadi Hantal had no title. The trial court held that the plaintiff had no title, that possession of the plaintiff and predecessors was unauthorised (trespass), and that the disputed property was part of land acquired by the State for the Central Government; the Appellate Judge affirmed the absence of title and the trespass finding, but found there was no evidence that possession had been taken by the State in the land acquisition proceeding. The plaintiff appealed further; the matter was referred to a larger Bench on the question of maintainability in view of the Encroachment Act, leading to the present opinion.

Legal Issues Presented

  1. Whether the civil suit was maintainable in view of the Orissa Prevention of Land Encroachment Act, 1972 and the parallel encroachment proceeding against the plaintiff.
  2. Whether the plaintiff, though held to have no title by the lower courts, could succeed in protecting possession by asserting a possessory title (prior possession) against the defendant or the State.
  3. Whether a civil court has jurisdiction to examine whether a tribunal or statutory authority (under the Encroachment Act) has acted within its jurisdiction or abused its power.
  4. What is the legal effect of the State not having taken possession under Section 16 of the Land Acquisition Act — specifically whether title had vested in the State and whether an injunction protecting the plaintiff's possession should continue until possession is taken under Section 16.

Arguments of the Parties

Appellant's (Plaintiff's) Arguments

  • The plaintiff purchased 86 decimals by a registered sale deed (28-11-1970) after obtaining requisite permission under the Orissa Land Reforms Act and remained in possession thereafter, having constructed a house on the land.
  • The encroachment proceeding related only to 8 decimals and was not maintainable because the land in question was not "Government property" within the meaning of the Encroachment Act.
  • The plaintiff contended (and his counsel argued) that he was entitled to protection on the basis of possessory title/previous possession; he challenged the Appellate Judge's rejection of principles enunciated in earlier decisions on possessory title (Gadadhar Sahu v. Karsanbasta Patel and E. Mangulu v. Paddili Sriramlu).

Respondent's (Defendant / State / Standing Counsel) Arguments

  • The defendant pleaded that the land belonged to Raghunath Hantal and was notified for acquisition; a dispute about compensation resulted in a prior judicial finding that Hadi Hantal had no title to the land, so the plaintiff's vendor (Hadi / Dalapati) had not obtained title.
  • The trial and appellate courts had found the plaintiff and predecessors to be unauthorised possessors (trespassers) and, on that basis, denied a declaration of title or possessory relief against the true owner or the State.
  • The encroachment proceeding was founded on the premise that the land had been acquired and was Government land; the defendant relied on that as a basis to treat the plaintiff as an encroacher. The Standing Counsel conceded, however, that possession had not been taken under the Land Acquisition Act and that the encroachment proceeding related only to 8 decimals while the plaintiff claimed 86 decimals.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Gadadhar Sahu v. Karsanbasta Patel, ILR (1963) Cut 482 Principles relating to possessory title / protection based on prior possession. The Appellate Judge had been unwilling to accept the principles from this case; the Bench considered possessory-title principles in assessing whether plaintiff's prior possession entitled him to protection despite absence of title.
E. Mangulu v. Paddili Sriramlu, (1974) 1 Cut WR 568 Principles relating to possessory title / protection based on prior possession. Similarly relied on by the plaintiff to support a claim of possessory title; the Court examined whether plaintiff's possession sufficed to afford protection.
Secretary of State v. Mask and Co., AIR 1940 PC 105 (Privy Council) It is open to the Civil Court to examine whether a tribunal created by statute has acted within its limitations. The Court relied on this authority to support the proposition that the Civil Court can inquire into whether the encroachment tribunal acted within its powers and thus has jurisdiction to entertain the suit.
Firm Seth Radha Kishan (deceased) v. Administrator, Municipal Committee, Ludhiana, AIR 1963 SC 1547 Under Section 9 CPC, Civil Courts retain jurisdiction unless statutory exclusion is clear; conferral of special jurisdiction does not automatically oust civil courts; civil suits may lie to question abuse or violation of statutory powers by a tribunal. The Court applied this principle to conclude that the existence of a statutory remedy or a tribunal under the Encroachment Act did not by itself oust the Civil Court's jurisdiction to entertain the present suit and to examine the encroachment proceeding's correctness.

Court's Reasoning and Analysis

The Court proceeded by analyzing several discrete points as follows:

  1. Title: The Court accepted that the lower courts' conclusion—that the plaintiff had not acquired title—had become final. The plaintiff did not press for a different conclusion on the title point, so the claim for declaration of title was not sustained.
  2. Possessory title / prior possession: The Court considered whether the plaintiff could nonetheless protect his possession on the basis of prior possession. While the Appellate Judge doubted that the plaintiff had the long or lawful possession required by the cited authorities, the Court noted earlier observations that "lawful possession does not mean that there must be a semblance of title to make the possession lawful though the title is not proved conclusively." On the facts, the Court found that the plaintiff had been in possession for "at least three or four years prior to the dispute" and thus had prior possession entitling him to retain possession against everyone except the true owner.
  3. Effect of land acquisition and Section 16 of the Land Acquisition Act: The Court examined whether the land had become Government property. It was undisputed that acquisition proceedings had been initiated, but the Appellate Judge's finding that the State had not taken possession in the land acquisition proceeding was accepted. Since Section 16 provides that upon taking possession after an award the land vests absolutely in the Government, the Court reasoned that because possession had not been taken under Section 16, title had not vested in the State. Consequently, the defendant could not assert that title had vested in the Government such that the plaintiff could not seek possessory protection.
  4. Jurisdiction and the Encroachment Act: The Court considered whether the civil suit was barred because of the encroachment proceeding. It found no provision in the Orissa Prevention of Land Encroachment Act that excluded Civil Court jurisdiction to determine whether the statutory tribunal acted within its limits. Relying on authorities (Privy Council and Supreme Court decisions cited in the opinion), the Court held that the Civil Court could inquire whether the encroachment proceeding was founded on an incorrect presumption (i.e., that the land had already vested in the State). Because the encroachment proceeding had been decided on the basis that the land was acquired, and because the Court found that vesting had not occurred (possession not taken under Section 16), the presumption underlying the encroachment conclusion did not avail.
  5. Scope of relief and interplay between possessory protection and acquisition: The Court reconciled its findings by determining that, although the plaintiff's title claim remained negatived, his prior possession entitled him to an injunction protecting his possession against the State so long as the State had not taken possession under Section 16. The Court explicitly limited the injunction's duration: once possession is taken under Section 16 and title vests in the State, the injunction ceases and the plaintiff's possessory remedy ends.

Holding and Implications

Holding: The Civil Court had jurisdiction to entertain the suit; the plaintiff, though not entitled to a declaration of title, was entitled to an injunction protecting his prior possession against the defendant (including the State) until such time as possession of the land was taken under Section 16 of the Land Acquisition Act.

Implications / Consequences:

  • The plaintiff's claim for declaration of title remains negatived (the courts below finding no title was not challenged and stands affirmed).
  • The defendant (including the State) is restrained from interfering with the plaintiff's possession so long as possession has not been taken under Section 16 of the Land Acquisition Act; the injunction granted shall cease to operate once possession is taken under Section 16 and the title vests in the State.
  • The encroachment proceedings (which addressed only 8 decimals) did not, on the facts found, oust the Civil Court's jurisdiction to adjudicate the broader dispute over the 86 decimals claimed by the plaintiff.
  • No broader precedent-creating pronouncement is made in the opinion beyond application of existing principles: the decision confines the plaintiff to possessory protection (not a declaration of title) and recognizes the temporal limitation of such protection pending actual vesting of title in the State under Section 16. The opinion does not state that it establishes any new legal principle beyond these operative conclusions.

Costs: Parties were directed to bear their respective costs throughout.

Show full summary ...

    Satyabadi Naik v. The State Of Orissa .

    R.N Misra, J.:— Plaintiff has appealed against the affirming judgement and decree of the learned Additional Subordinate Judge of Jeypore upholding dismissal of his suit for declaration of title and injunction restraining the defendant from disturbing his possession.

    2. Plaintiff alleged that he had purchased 86 decimals of land out of plot No. 57 in Mauza Kaki under a registered sale deed dated 28-11-1970 (Ext. 2) for a consideration of Rs. 2,580/- after obtaining the requisite permission from the competent authority under the provisions of the Orissa Land Reforms Act from one Dalapati Hantal. Dalapati had purchased the property from Hadi Hantal and Laxman Hantal in Feb., 1969. Plaintiff has remained in possession of the property following his acquisition and had constructed an asbestos-roofed house thereon. On 14-4-1972, the Additional Tahsildar of Sunabeda initiated a proceeding under the Orissa Prevention of Land Encroachment Act, 1972, on the allegation that the land in question had already been acquired under the Land Acquisition Act (I of 1894) by the State Government of Orissa and notwithstanding the objection of the plaintiff, directed his eviction on the footing that plaintiff was an encroacher. Plaintiff tried to obtain relief under the Statute, but since his appeal and revision were dismissed, he was obliged to institute the suit. According to him, the land is not “Government property” within the definition of the Encroachment Act and as such the proceeding was not maintainable. It may be stated that the proceeding was in respect of 8 decimals out of the 86 decimals purchased by the plaintiff. In its written statement, the defendant pleaded that the land belonged to one Raghunath Hantal and he died leaving behind his daughter Padma. The 92 decimals of land belonging to Raghunath Hantal including the disputed property was notified for acquisition. A dispute arose as to who was the proper person to be compensated and the matter was referred to the Court of the Subordinate Judge, Jeypore, in M.J.C No. 109 of 1964 under Section 30 of the Land Acquisition Act. The learned Subordinate Judge held that the land was the separate property of Raghunath Hantal and Hadi Hantal had no title over it. Plaintiff's vendor had never acquired any title to the property and plaintiff, therefore, is not entitled to declaration of his title. The construction of the house by the plaintiff is an encroachment after the acquisition and plaintiff is not entitled to protection. The land encroachment proceeding had been rightly initiated as the disputed property was Government land and plaintiff was an encroacher.

    3. Several issues were raised and the learned trial Judge came to hold that the plaintiff had no title and the disputed property was a part of the land acquired by the State for the purpose of the Central Government, i.e the MIG factory at Sunabeda and plaintiff had, therefore, no cause of action for instituting the suit. The learned Appellate Judge affirmed the finding that Hadi Hantal, the vendor had no title. Possession of Hadi Hantal and Dalapati Hantal as also of plaintiff was unauthorised and plaintiff was a mere trespasser. Plaintiff was not entitled to claim possessory title. He, however, came to hold that there was no evidence that the State Government had taken over possession of the property in the land acquisition proceeding. On these findings, the appeal was dismissed.

    4. The second appeal was placed before our learned brother Das, J. who referred the matter to a larger Bench for considering the question of maintainability of the suit in view of the provisions contained in the Orissa Prevention of Land Encroachment Act. That is how this appeal is before us.

    5. The finding that plaintiff has acquired no title appears to have become final as learned counsel for the appellant does not ask us to take a different view. It is contended that the learned Appellate Judge failed to appreciate the claim of possessory title. The learned Appellate Judge was not inclined to accept the principles enunciated by this Court in the case of Gadadhar Sahu v. Karsanbasta Patel, ILR (1963) Cut 482 and in the case of E. Mangulu v. Paddili Sriramlu, (1974) 1 Cut WR 568, by saying:—

    “………But in the present case there is no evidence to show that the plaintiff was in long possession of the property, or he came into lawful possession of the property. It is significant to note that there is no averment in the pleadings that the plaintiff has any possessory title or for that matter was in lawful possession of the property since long. It is the specific case of the plaintiff that the property belonged to Hadi Hantal who sold the same to Dalapati Rantal (P.W 1) who in his turn sold the same to the plaintiff. P.W 1-Dalapati Hantal purchased the property from Hadi Hantal in the year 1969 and sold the property to the plaintiff in the year 1970. As already stated, the property admittedly belonged to one Raghunath Hantal who is the brother of Hadi and both of them were living separate. There is no evidence worth the name to show that Hadi Hantal was in possession of the property for a long time in exercise of his rights. It is in evidence that Raghunath was living with Hadi after the death of his wife and it is thus how Hadi was in possession of the property and continued to possess the same after the death of Raghunath……….”

    6. The learned subordinate Judge had taken note of the observation of this Court to the effect:—

    “Lawful possession does not mean that there must be a semblance of title to make the possession lawful though the title is not proved conclusively.”

    7. In that view of the matter, plaintiff being in possession of the property for at least three or four years prior to the dispute must be found to have been in prior possession and is entitled to retain possession by resorting to the judicial process against the entire world but not the true owner.

    8. There is no dispute that there has been a land acquisition proceeding for acquisition of this property for the purposes of the MIG factory at Sunabeda and the said acquisition is for a Central owned Corporation by the State of Orissa on behalf of the Central Government. Learned Standing Counsel does not dispute the finding of the lower appellate court that possession has not been taken of the property in the land acquisition proceeding. Section 16 of the Acquisition Act provides:—

    “When the Collector has made an award under S. 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.”

    9. Possession having not yet been taken, the acquired land has not yet vested with title in the State and the defendant is not, therefore, entitled to contend that title to the property vests in the Government and Government being the real owner, no relief on the basis of possessory title can be given against the true owner. On the aforesaid analysis” plaintiff being in prior possession, was entitled to maintain his possession as against the State Government.

    10. Learned Standing Counsel has conceded before us that the property in dispute in the suit is a total area of 86 decimals which plaintiff claimed to have acquired under a registered sale deed. The proceeding under the Encroachment Act was only in regard to 8 decimals of land. In that view of the matter, the suit could not have been found not to be maintainable. It has been the case of the plaintiff that the land in regard to which proceeding was taken under the Encroachment Act was not ‘Government land’. It is conceded before us by defendant's counsel that if the land would not be ‘Government land’, the Encroachment Act would not have application. No provision in the Orissa Prevention of Land Encroachment Act of 1972 has been shown to us which excludes the jurisdiction of the Civil Court to determine whether the Tribunal created under the statute has acted within its own bounds. It has been held by the Privy Council in the case of Secretary of state v. Mask and Co., AIR 1940 PC 105 that it is open to the Civil Court to examine in a given case whether a tribunal created by an Act has acted with in its own limitations. In the case of Firm Seth Radha Kishan (deceased) v. Administrator, Municipal Committee, Ludhiana, AIR 1963 SC 1547 it was observed (at P. 1551):—

    “Under Section 9 of the CPC the Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of Civil Courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of Civil Courts. The statute may specifically provide for ousting the jurisdiction of Civil Courts; even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the Civil Court's jurisdiction is not completely ousted. A suit in a Civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions.”

    11. In view of what has been said above, we are inclined to take the view that the Civil Court did have jurisdiction to entertain the suit even in respect of the property which has been made the subject matter of the encroachment proceeding. The encroachment proceeding had been decided on the basis that the land had been acquired and had thus become Government land. As we have found that the property had not vested in the State, the presumption on which the encroachment proceeding was concluded is not of any avail.

    12. On our findings that the Civil Court had jurisdiction and, therefore, the suit was maintainable and the plaintiff being in previous possession was entitled to protection of his possession against the State which has not yet acquired title to the property, plaintiff must be entitled to a decree for injunction on the basis of previous possession only. The claim of title which had been negatived in the courts below stands affirmed in the absence of any challenge from the plaintiff.

    13. The defendant shall be restrained from interfering with plaintiff's possession as long as in the land acquisition proceeding possession is not taken under Section 16 of the Land Acquisition Act. Once such possession be taken, the title in the property would vest in the State and plaintiff with possessory right would not be entitled to any further remedy. We make it clear that injunction shall not be operative once possession is taken under Section 16 of the Act by the defendant and the relief granted in the suit must come to an end.

    14. Parties are directed to bear their respective costs throughout.

    15. B.K Ray, J.:— I agree.

    16. Order accordingly.

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    Comments

    Satyabadi Naik v. The State Of Orissa .
    (Jul 25, 1978)