PRESENT: THE HONOURABLE DR. JUSTICE A.K.RATH Date of Hearing :01.5.2018 & Date of Judgment:09.5.2018 Dr.A.K.RATH, J. Defendant no.1 is in appeal against a confirming judgment of the learned Additional District Judge, Berhampur.
2. Plaintiff-respondent no.1 instituted the suit for declaration of title and permanent injunction. Plaintiff is a deity. The case of the plaintiff is that originally the suit land was Grama Kantha Pormoboke. The archaka of the deity constructed the shop rooms over the suit land and let out the same to different persons. During emergency of the year 1976-77, defendant no.1 demolished the shop rooms and took possession of the same. Thereafter in the year 1978, defendant no.1 started construction over the suit land and completed the same.
3. Defendant no.1 entered contest and filed written statement denying the assertions made in the plaint. The case of defendant no.1 is that Gramkantha Paramboke land belongs to the Government. The plaintiff has no title over the same. The defendant no.1 demolished the structure and thereafter raised construction of the shop rooms and school. Defendant no.2 filed written statement stating that the suit land is Gramkantha Paramboke. The said land has been recorded as Sarbasadharan.
4. Stemming on the pleadings of the parties, learned trial court framed thirteen issues. Parties led evidence, both oral and documentary, to substantiate their cases. Learned trial court decreed the suit with the finding that the deity is in possession of the suit land for more than 100 years and as such has perfected title by way of adverse possession. The plaintiff is entitled to recovery of possession of the suit land encroached upon by defendant no.1 after demolishing the houses built by defendant no.1. Accordingly, it directed defendant no.1 to remove the houses, which were built over the suit land. Unsuccessful defendant no.1 filed R.F.A.No.13/04 (TA 27/01 GDC) before 2nd Additional District Judge, Berhampur, which was eventually dismissed.
5. The Second Appeal was admitted on the following substantial questions of law :
1. Whether the courts below are justified in entertaining the suit of the deity without considering the specific plea of the defendant that in absence of a mandatory notice as contemplated in the Code of Civil Procedure and the notice as provided under Section 349 of the Orissa Municipal Act, the suit is not maintainable ?
2. Whether the courts below are justified in declaring the suit land, which was Sarbasadharan as per the ROR, to be the property of the plaintiff-deity in absence of any documentary evidence regarding valid acquisition of the same by the plaintiff-deity?
6. Heard Mr.Ajit Kumar Choudhury, learned Advocate for the appellant and Mr.Budhadev Routray, learned Senior Advocate along with Mr.Subhadatta Routray, learned Advocate for respondent no.1 along with Mr.R.P.Mohapatra, learned Additional Government Advocate for respondent no.2.
7. Mr.Choudhury, learned Advocate for the appellant submitted that the suit land is Gramkantha Paramboke. The same was transferred to the Berhampur Municipality, defendant no.1 and, accordingly notification was issued by the Government of Orissa. The notification was published in the Orissa Gazette on 14.2.1964, Ext.C. The plaintiff has no title over the suit land. The deity cannot claim title by way of adverse possession. The Municipality has constructed the shopping complex over the land in question. He further contended that the suit land has been recorded as Sarbasadharan. To buttress submission, he placed reliance on a decision of this Court in the case of State of Orissa and another v. Sri Sri Radha Govinda Swain, 2018(I) ILR-CUT-
305.
8. Mr.Routray, learned Senior Advocate for respondent no.1 submitted that deity is in possession of the land for more than 100 years. The archak-trustee of the deity had constructed the shop rooms. During national emergency in the year 1976-77, the shop rooms were demolished without any notice. Thereafter, defendant no.1 unauthorisedly made construction over the land of the deity. Both the courts concurrently held that deity had title over the suit land. There is no perversity in the said finding. He further contended that no issue was framed with regard to adverse possession. The defendant no.1 had no title over the suit land. Notice under Section 349 of the Orissa Municipal Act was issued before institution of the suit. There is no pleading that the land has been transferred by the State Government in favour of defendant no.1. The decision in the case of Sri Sri Radha Govinda Swami (supra) is distinguishable on facts. He further contended that adverse possession can only be claimed as against true owner. Defendant no.1 is a rank trespasser as held by the learned appellate court. The plea of adverse possession is not sine qua non for adjudicating the dispute involved in the present dispute. A trespasser can maintain a suit against another trespasser. In the R.O.R., the suit property has been recorded as Debasthali. The name of defendant no.1 has not been recorded in the R.O.R.
9. Mr.Mohapatra, learned A.G.A. submitted that the suit land originally belongs to the Government. The same has been transferred to in favour of defendant no.1 pursuant to the Orissa Gazette Notification dated 14.2.1964.
10. The specific plea of the plaintiff is that deity is in possession of the suit land for more than 100 years and, as such has perfected title by way of adverse possession. Learned trial court framed issue no.2 whether the plaintiff-deity has acquired adverse possession over the suit property against true owner? and answered the same in affirmative. The same was confirmed by the learned appellate court.
11. In the celebrated judgment, the Privy Council, in the Secretary of State Vrs. Debendra Lal Khan, A.I.R. 1934 Privy Council 23, held that the classical requirement of adverse possession is that the possession should be nec ve nec clam nec precario. Their Lordships quoted with approval the decision in the case of Radhamoni Debi Vrs. Collector of Khulna (1), 140 of 27
I.A. at page 140 that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.
12. In Karnataka Board of Wakf vs. Govt. of India and others, (2004) 10 SCC 779, the apex Court 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)
13. Mere possession of the suit land for long time is not suffice to hold that the plaintiff has perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved.
14. The date of entry into the suit land has not been mentioned. There is no pleading that the plaintiff is in possession of the suit land peacefully, continuously and with the hostile animus to the true owner and, as such, has perfected title by way of adverse possession.
15. In Sri Sri Radha Govinda Swami (supra), this Court had the occasion to consider as to whether the deity can be said to be a landless person within the meaning and ambit of Section 3(a)-1 of Orissa Prevention of Land Encroachment Act, 1972. This Court held that deity is a juristic person. By no stretch of imagination, the deity can be said to be a landless person. It is highly inconceivable that deity would file the suit for declaration of title by way of adverse possession. People used to visit the temple to offer prayer. If the deity files a suit by encroaching upon others land, then nobody would be safe. Romans say "who will guard the Praetorian Guard". The decision of Sri Sri Radha Govinda Swami (supra) proprio vigore applies to the facts of this case as well.
16. The courts below concurrently held that notice as contemplated under Section 349 of the Orissa Municipal Act has been issued before institution of the suit. There is no perversity in the said finding. But then the courts below fell into patent error in declaring the title of the plaintiff by way of adverse possession. The land has been recorded as Sarbasadharan in the R.O.R.. The same has been transferred by the Government of Orissa to the Berhampur Municipality, defendant no.1 pursuant to the Gazette Notification dated 14.2.1964, Ext.C.
17. A priori, the impugned judgments are set aside. The appeal is allowed. Consequently, the suit is dismissed. No costs. ....... Dr.A.K.Rath, J. Orissa High Court, Cuttack, The 9th May, 2018/CRB
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