1. This is a plaintiff''s appeal against confirming judgment. The suit was for declaration of right, title, interest and delivery of possession.
2. The case of the plaintiff was that in or about the year 1952 or 1953, the Project Committee of Minor Irrigation Project of village Kulabira
reserved the suit land and other lands for Padmalochan Patel, father of defendant no.2 for exchange of his raiyati lands measuring about eight
acres, which was submerged in the said project. Before completion of project, the suit land had been settled in favour of Chamara Ganda, father of
defendant no.1. Padmalochan Patel along with the plaintiff and others preferred appeal. The Additional Collector, Sundargarh allowed the appeal
on 17.12.1954 and cancelled the temporary hukumnama granted to Chamara Ganda. The said order was confirmed by the Member, Board of
Revenue in the appeal preferred by Chamara Ganda. Thereafter proclamation was issued on 27.8.1955 for settlement of the land in favour of the
plaintiff and others. Though Padmalochan Patel got Bhogra land along with the suit land from the Project Committee in exchange of his submerged
lands, he orally gave up the suit land in favour of the plaintiff. The plaintiff possessed it after reclamation. The suit land was subsequently settled by
the Tahasildar in his favour in Lease Case No.422 of 1974. In the settlement proceeding parcha was issued in the name of the plaintiff. While the
matter stood thus, the Executive Magistrate in a proceeding under Section 145 Cr.P.C. declared possession of defendant no.1, which was
confirmed by the learned District Judge, Sundargarh. When defendant no.1 threatened the plaintiff to dispossess him, he filed the suit seeking the
aforesaid reliefs mentioned supra.
3. Defendant no.1 filed written statement denying the assertions made in the plaint. The case of defendant no.1 was that despite cancellation of
hukumnama granted in favour of his father, he remained in possession of the disputed land till death of his father in the year 1960. On the basis of
zamanbandi no.11 created by the Revenue Department in the name of his father, rent and cess thereof are being realized from him. The settlement
of that land in favour of the plaintiff in Lease Case No.422 of 1974 is illegal and inoperative. Defendant no.2 was set ex parte.
4. On the inter se pleadings of the parties, the learned trial court struck nine issues. The parties led evidence, both oral and documentary to
substantiate the case. The learned trial court came to hold that the plaintiffs are not in possession of the suit land. The defendant no.1 has acquired
title by way of adverse possession. Held so, it dismissed the suit. The unsuccessful plaintiffs challenged the said judgment and decree before the
learned District Judge, Sundargarh, which was eventually dismissed. It is apt to state here that during pendency of the suit, the original plaintiff died,
whereafter his legal representatives have been substituted.
5. The appeal was admitted on the following substantial question of law.
Whether Ext.1 gives valid title to the plaintiff.
6. Heard Mr.Sachidananda Kar, learned Advocate assisted by Mr.Alok Kumar Mohanty, learned Advocate for the appellants. None appears for
the respondents.
7. Mr.Kar, learned Advocate for the appellants argues with vehemence that the suit land had been settled in favour of the original plaintiff. Patta
was issued in his favour, vide Ext.1. Thus, the plaintiff became the absolute owner in possession of the suit land. There is no pleading with regard to
adverse possession. On untenable and unsupportable grounds, the courts below came to hold that defendant no.1 has perfected title by way of
adverse possession. He further submits that the courts below wrongly placed reliance on the hukumnama, which was subsequently cancelled by the
authority and confirmed by the Member, Board of Revenue.
8. In State of Kerala Vrs. M.K.Kunhikannan Nambiar, AIR 1996 SC 906, the apex Court held that even a void order or decision rendered
between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact be effective inter parties
until it is successfully avoided or challenged in higher forum. Mere use of the word ""void"" is not determinative of its legal impact. The word ""void
has a relative rather than an absolute meaning. It only conveys the idea that the order is invalid or illegal. It can be avoided. There are degrees of
invalidity, depending upon the gravity of the infirmity, as to whether it is, fundamental or otherwise. The apex Court held :
7. xxx xxx xxx
An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the
necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its
ostensible purpose as the most impeccable of orders.
This must be equally true even where the brand of invalidity is plainly visible: for there also the order can effectively be resisted in law only by
obtaining the decision of the court. The necessity of recourse to the court has been pointed out repeatedly in the House of Lords and Privy Council
without distinction between patent and latent defects.
9. In view of the fact that patta has been issued in favour of the plaintiffs in Lease Case No.422 of 1976, the plaintiffs are the absolute owners of
the suit land. The hukumnama granted in favour of the father of defendant no.1 had been cancelled by the A.D.M.. The father of the plaintiffs
unsuccessfully challenged the said order before the Member, Board of Revenue. The order of cancellation was upheld.
10. Adverse possession is a mixed question of fact and law. 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"". The date of entry into the suit land by defendant no.1 has not been mentioned. Mere possession of the suit land for long time is not
suffice to hold that defendant no.1 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. There is no pleading that defendant no.1 is in possession of the suit land peacefully, continuously
with the hostile animus to the plaintiffs. In view of the same, the finding of the courts below that defendant no.1 has perfected title by way of
adverse possession is perverse. The substantial question of law is answered accordingly.
11. In the wake of the aforesaid, the impugned judgments are set aside. The appeal is allowed. Consequently, the suit is decreed. There shall be no
order as to costs.
