K.R. Mohapatra, J
1. This appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed assailing the judgment and decree dated 16th January, 2018
passed by learned Additional District Judge, Jharsuguda in RFA No.07 of 2014 whereby he confirmed the judgment and decree dated 1st February,
2014 and 24th February, 2014 respectively passed by learned Civil Judge (Senior Division), Jharsuguda in TS No.220/100 of 1995-2004.
1.1 For the sake of convenience, the parties are described as per their status in the trial Court.
2. Plaint averments in short reveal that Suit land in HS Khata No.93 and HS Plot No.121 (Gochar) measuring an area Ac.14.70 decimal of mouza
Ekatali, which corresponds to MS Khata Nos.499 and 497 of Jharsuguda town Unit-I (Ekatali) in the district of Jharsuguda, was situated under a
Gountiahi village under un-divided district of Sambalpur. As per the documents of administration, i.e., Wazib-ul-urj of said village, Lambardar Gountia
of the village was entitled to reclaim and cultivate it and also to lease out the same to rayats/tenants for reclamation and cultivation without charging
any Nazarana or Salami. The deceased plaintiff No.1, namely, Brundabana Sharma requested the then Gountia, namely, Gokulananda Patel @
Gountia to lease out the suit land for reclamation and cultivation by his joint family consisting of himself and his brother Banawarilal Sharma.
Accordingly, on 12th October, 1944, said Gokulananda Gountia leased out the suit land to Brundabana Sharma. The family of Brundabana Sharma
reclaimed the suit land and cultivated the same by raising different crops. They also constructed a house thereon and paid land revenue to Gountia.
After abolition of the Gounti system with effect from 1st April, 1960, they continued to pay municipal taxes to Jharsuguda Municipality. By operation
of law, the plaintiff No.1, namely, Brundabana Sharma became an occupancy rayat. Tahasildar, Jharsuguda, after due enquiry and verifying gounti
patta granted in favour of Brundabana Sharma and also taking into consideration the possession of plaintiffs, settled the suit land in his favour in
Revenue Case No.33/7-1 of 1962-63. The deceased plaintiff No.1 was also paying land revenue from 1960 till 1991. In Major Settlement, the suit land
was recorded in the name of plaintiff No.1. There was a partition of the suit land in the family of the deceased plaintiff No.1, which was accepted by
the Additional Tahasildar in OLR Ceiling Case No.2 of 1978.
3. After 27 years of order of Tahasildar in Misc. Case No.33/7-1 of 1962-63, the State of Odisha filed revision before Member, Board of Revenue,
Odisha, Cuttack under Section 38-B of the Odisha Estates Abolition Act, 1951 (for short, ‘the OEA Act’) in OEA Revision Case No.37 of
1989 assailing order dated 24th December, 1962 passed by the Tahasildar, Jharsuguda in the aforesaid Misc. Case. The Member, Board of Revenue,
allowed the said revision holding that the order passed by OEA Collector-cum-Tahasildar, Jharsuguda to be null and void. Being aggrieved, the plaintiff
No.1-Brundabana Sharma filed OJC No.781 of 1993 before this Court. Taking into consideration that the Revision was filed 27 years after the land
was settled in favour of the plaintiff No.1 and also other legal grounds, this Court set aside the order passed by learned Member, Board of Revenue.
Assailing the said order passed in OJC No.781 of 1993, the State of Odisha moved the Hon’ble Supreme Court in SLP (Civil) No.15486 of 1993.
Hon’ble Supreme Court set aside the order of this Court holding that Member, Board of Revenue has power to revise the order after 27 years.
The plaintiff Nos. 2 to 4 were not parties to either the OEA Revision or in the writ petition before this Court or SLP filed before the Hon’ble
Supreme Court. Hence, it is contended that the said order is not binding on them. It is further contended that since possession of the plaintiffs is open,
continuous and for a period of more than thirty years, they have perfected their title on the Schedule ‘A’ land by adverse possession.
Accordingly, the suit was filed claiming right, title and interest over the suit land and for confirmation of possession.
4. The defendants filed written statement contending that Gokulananda Patel @ Gountia was neither Gountia nor landlord of the village in question and
had got no right to lease out the ‘Gochar’ land. The alleged Patta dated 12th October, 1944 was forged one and the plaintiffs never possessed
the suit land. Learned Member, Board of Revenue in OEA Revision Case No.37 of 1989 and the Hon’ble Supreme Court in SLP Nos.2838-15486
of 1993 arising out of said Revision, have categorically held that the Tahasildar had no power under Section 8(1) of the OEA Act to record the name
of Brundabana Sharma in respect of the suit land. No sanction under Section 5(1) of the OEA Act being taken from the Member, Board of Revenue
for confirmation of the lease in respect of the suit land the same is void. Further, the Hon’ble Supreme Court by order dated 28th January, 1994
passed in Civil Appeal Nos.827-828 of 1994 (arising out of SLP (Civil) Nos.2838 and 15486 of 1993, held that the lease of the land allegedly granted
by the intermediary in favour of Brundabana Sharma prior to the date of vesting does not confer any tenancy right in his favour and confirmation of
tenancy right by the Tahasildar without obtaining prior confirmation of Member, Board of Revenue is without jurisdiction. Payment of land revenue or
rent being an administrative act does not confer any right, title or interest in the suit land in favour of plaintiff No.1. Hence, they pray for dismissal of
the suit.
5. Learned Civil Judge, taking into consideration the rival contentions of the parties, framed as many as 19 issues for adjudication of the suit, which are
as follows:-
1. Whether the lease patta granted by Gokulananda Patel in the year 1944 is a valid one?
2. Whether Gokulananda Patel has right to grant lease patta?
3. Whether Gokulananda Patel was the Lambardar Gountia of village Ekatali?
4. Whether Brundabana Sharma has been possessing on the strength of patta dated 12.10.44?
5. Whether Burndaban Sharma had reclaimed the land?
6. Whether the house was constructed by the plaintiff?
7. Whether the plaintiffs have possessed the house?
8. Whether the plaintiffs became rayat under the Government automatically?
9. Whether the payment of malgujari to Gokulanda Patel or anybody else confer any title on Brundabana Sharma or any of his family
members?
10. Whether the judgment of the Hon’ble Supreme Court passed in Civil Appeal No.827-28 of 1994 arising out of SLP (c) No.2838 and
15486 of 1993 operates as res-judicata in this world?
11. Whether the plaintiffs have been possessing the suit land from 1944 till now as occupancy rayat and also adversely against the entire
world?
12. Whether the plaintiffs have perfected their title over the suit land more than 30 years adverse possession?
13. Whether by paying the land revenue will confer any right?
14. Whether the judgment of the Hon’ble Supreme Court of India is binding on all the plaintiffs?
15. Whether there is any cause of action for this suit?
16. Whether the plaintiffs are entitled to get any relief?
17. Whether the suit is maintainable?
18. To what relief the plaintiffs are entitled to, if any?
19. Whether the valuation of the suit land is Rs.1,05,000/-(Rupees one lac and five thousand) only?
6. Learned Civil Judge answering all the issues against the plaintiffs, dismissed the suit vide judgment dated 1st February, 2014 and decree dated
24th February, 2014. During pendency of the suit, plaintiff No.1-Brundabana Sharma died and was substituted by his legal heirs as plaintiffs Nos.1(a)
to 1(g). Likewise, plaintiff No.2 also died and substituted by his legal heirs plaintiff Nos.2(a) to 2(g).
6.1 Assailing the judgment and decree passed in the suit, the plaintiffs preferred RFA No.07 of 2014, which was dismissed vide judgment and decree
dated 16th January, 2018 passed by learned Additional District Judge, Jharsuguda. Being aggrieved by the aforesaid judgment and decree, the
plaintiffs have preferred this Second Appeal. Initially, the appellants in the memorandum of appeal proposed to frame the following questions of law
for consideration.
(i) Whether the learned Original Court and the learned First Appellate Court committed manifest illegality inmechanically deciding the issues framed in the suit
in view of the judgment under Exhibit C and without any discussion or reliance placed on the documentary evidence on record in view of the fact that Exhibit C is
a judgment from summary proceeding questioning the validity of quasi-judicial order of the which is not binding on the learned original Court which was bound
to decide right title and interest of the plaintiffs on the basis of evidence adduced by parties?
(ii) Whether the plaintiffs who are all the representatives of a Hindu undivided joint family and enjoying joint tenancy and joint possession as yet (for the want of
partition) bound by the judgment under Exhibit C where the other branches of the common ancestor of Brundabana Sharma were admittedly not parties and
Brundabana Sharma was admittedly not a karta of the joint family?
(iii) Whether the plaintiffs have perfected their title of Adverse Possession by possessing the suit land for 1944 to 1995 even till date?
Subsequently, during course of argument, Mr. Mishra, learned Senior Advocate prays for consideration of following substantial questions of law.
Whether the Courts below have failed to take judicial notice of the conclusion of the Supreme Court judgment vide Exhibit ‘C’ that the possession of
Brundabana Sharma is illegal and he was a wrongful and illegal occupant of the Government land, which otherwise justifies the claim of the plaintiff to have
acquired the right, title and interest by way of adverse possession in view of their uninterrupted possession for more than the statutory period over the suit land
from 12.10.1944 till date against the State Government on the basis of a void transaction?
7. It is the submission of Mr. Mishra, learned Senior Advocate that in view of the verdict of Hon’ble Supreme Court vide Ext-‘C’, the
possession of Brundabana Sharma over the suit land becomes illegal, which otherwise justify the claim of the plaintiffs to have acquired right, title and
interest by way of adverse possession in view of their open and un-interpreted possession for more than the statutory period with effect from 12th
October, 1944 till date.
8. Taking into consideration the averments made in the plaint as well as written notes of submissions and scrutinising the materials on record, it can be
safely said that the claim of the plaintiffs rests on the Patta granted by Gokulananda stated to be the erstwhile Gountia of the village in favour of
Brundabana Sharma (plaintiff No.1) on 12th October, 1944. Plaintiff Nos.2 to 4 claimed right, title and interest over a portion of the suit land on the
basis of either partition or gift made in their favour from out of the suit land allegedly leased out in favour of said Brundabana Sharma. Hon’ble
Supreme Court in Civil Appeal Nos.827-828 of 1994 (State of Orissa and others â€"v- Brundabana Sharma and another, reported in 1995 Supp
(3) SCC 249) held as follows:
“19. So, we hold that the High Court is not right or justified in opining that the exercise of the power under Section 38-B is not warranted. It committed
illegality in quashing the order of the Board of Revenue. The order of the High Court is set aside. The order of the Board of Revenue is restored. Consequently we
hold that the Government, being the owner, need not acquire its own land and need not pay compensation to an illegal or wrongful occupant of the Government
land. The direction or mandamus to acquire the land and to pay the compensation to the respondent is set aside.
20. The appeals are accordingly allowed. But in the circumstances, the parties are directed to bear their own costs.â€
9. Thus, in view of the findings of the Hon’ble Supreme Court in Brundabana Sharma (supra), the claim of title by the plaintiffs over the suit land
as occupancy rayats, is no more available to be raised in a subsequent suit.
10. The next question that remains to be adjudicated is as to whether the claim of plaintiffs to have acquired title by adverse possession can be
adjudicated in this appeal as a substantial question of law.
11. Mr. Mishra, learned Senior Advocate appearing on behalf of the plaintiffs/appellants reiterating the averments made in the plaint, strenuously
argued, when the Hon’ble Supreme Court had declared the occupation of the plaintiffs to be illegal and wrongful, their possession becomes
adverse from the date of their initial possession, i.e., 12th October, 1944. In support of his case, he relied upon the decision in the case of Collector of
Bombay Vs. Municipal Corporation of the City of Bombay and others, reported in AIR 1951 SC 469, in paragraph-11 of which it is held as
under:- Â
“11…….. Both parties acted on the basis of that Resolution and the predecessor in title of the respondent Corporation went into possession
of the land in question pursuant to the Government Resolution of 1865 and, acting upon the said Resolution and the terms contained therein, the respondent
Corporation and its predecessor in title spent considerable sums of money in leveling the site and erecting and maintaining the market buildings and have been
in possession of the land for over 70 years. What, in the circumstances was the legal position of the respondent Corporation and its predecessor in title in relation
to the land in question? They were in possession of the land to which they had no legal title at all. Therefore, the position of the respondent Corporation and its
predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in
perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the
Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under the invalid grant.
This possession has continued openly, as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title it and its
predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity free from rent but only for the purposes of
a market in terms of the Government Resolution of 1865. The immunity from the liability to pay rent is just as much an integral part or an inserverable incident of
the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose. There is no question of acquisition by adverse
possession of the Government prerogative right to levy assessment. What the respondent Corporation has acquired is the legal right to hold the land in perpetuity
free of rent for the specific purpose of erecting and maintaining a market upon the terms of the Government Resolution as it a legal grant had been made to
it……..â€
(emphasis supplied)
He, therefore, submits that since the initial entry of the plaintiff No.1 to the suit land was not legal, the possession becomes adverse to the true owner,
i.e., Government of Odisha. The plaintiffs are in possession of the suit land till date. As such, they have perfected their title by adverse possession. He
further relied upon the decision in the case of the State of West Bengal Vs. Dalhousie Institute Society, reported in (1970) 3 SCC 802,
paragraphs-16 and 17 of which are relevant for discussion, which are as follows:-
“16. There is no material placed before us to show that the grant has been made in the manner required by law though as a fact a grant of the site has been
made in favour of the Institute. The evidence relied on by the Special Land Acquisition Judge and the High Court also clearly establishes that the respondent has
been in open, continuous and uninterrupted possession and enjoyment of the sit for over 60 years. In this respect the material documentary evidence referred to by
the High Court clearly establishes that the respondent has been treated as owner of the site not only by the Corporation, but also by the Government. The
possession of the respondent must have been on the basis of the grant made by the Government, which, no doubt, is invalid in law. As to what exactly is the legal
effect of such possession has been considered by this Court in Collector of Bombay v. Municipal Corporation of the City of Bombay, 1952 SCR 43 : AIR 1951 SC
469 as follows:……
17. The above extract establishes that a person in such possession clearly acquires title by adverse possession. In the case before us there are concurrent findings
recorded by the High Court and Special Land Acquisition Judge in favour of the respondent on this point and we agree with those findings.â€
(emphasis supplied)
He, therefore, submitted that the plaintiffs have clearly acquired title over the suit land by adverse possession. It is his submission that in addition to the
claim of the title by the plaintiffs as occupancy rayats, there is no bar under law to claim title by adverse possession. Hence, he prays for framing the
aforesaid question(s) of law for adjudication of the appeal.
12. In order to take a decision with regard to framing of substantial question of law on the issue of adverse possession, this Court took assistance of
Miss Samapika Mishra, learned Additional Standing Counsel, who also represents the defendant-State in this appeal.
13. Miss Mishra, learned Additional Standing Counsel submitted that the plaintiffs have all throughout in the plaint have contended that they have
acquired title over the suit land as occupancy rayats. An occupancy right over the suit land cannot be acquired by adverse possession as held by this
Court in the case of Champa Bati Bewa @ Kabi and others Vs. Kanhu Mallik and other,s reported in Vol.33 (1991) O.J.D. 154 (Civil), which is
as follows:-
“9. The learned lower appellate court has held that defendant No.1 acquired occupancy right by adverse possession. The finding is against law because
occupancy right cannot be acquired by adverse possession. It was alternatively held that defendant No.1 being settled raiyat of the village acquired occupancy
right under Sections 24 and 25 read with Section 23 of the Orissa Tenancy Act by being in possession for more than 25 years. There is no pleading to that effect.
Hence, the finding of the lower appellate court that defendant No.1 acquired occupancy right cannot be sustained. In Lachmllal and Ganesh Chamar, AIR 1932
Patna 259, it has been held that status of a tenant on notice to quit is that of a trespasser.â€
13.1 It is her submission that issue of adverse possession is based on the principle of nec vi nec clam nec precario. Therefore, the claim of right over
the suit land as occupancy rayat and the claim of title by adverse possession are mutually destructive and hence not permissible under law. In support
of her submission, she relied upon the case of Praful Manohar Rele â€"v- Krishnabai Narayan Ghosalkar and others, reported in (2014) 11
SCC 316, in para-10 of which it is held as under:-
“10. Significantly, the decision rendered by the High Court rests entirely on the fourth question extracted above. The High Court has taken the view that while
the plaintiff could indeed seeks relief in the alternative, the contentions raised by him were not in the alternative but contradictory, hence, could not be allowed
to be urged. The High Court found that the plaintiff’s case that the defendant was a gratuitous licensee was incompatible with the plea that he was a tenant
and, therefore, could be evicted under the Rent Act. The High Court observed:
“It is now well settled that a plaintiff may seek reliefs in the alternative but in fact the pleadings are mutually opposite, such pleas cannot be raised by the
plaintiff. There is an essential difference between contradictory pleas and alternative pleas. When the plaintiff claims relief in the alternative, the cause of action
for the reliefs claimed is the same. However, when contradictory pleas are raised, such as in the present case, the foundation for the contradictory pleas is not the
same. When the plaintiff proceeds on the footing that the defendant is a gratuitous licensee, he would have to establish that no rent or consideration was paid for
the premises. Whereas, if he seeks to evict the defendant under the Rent Act, the plaintiff accepts that the defendant is in possession of the premises as a tenant and
liable to pay rent. Thus, the issue whether rent is being paid becomes fundamental to the decision. Therefore, in my opinion, ,the pleas that the defendant is
occupying the suit premises gratuitously is not compatible with the plea that the defendant is a tenant and therefore can be evicted under the Rent Act.â€
(emphasis supplied)
She, therefore, submitted that the foundations of both the pleas taken by the plaintiffs being different and opposite to each other, are not permissible
under law to be raised. She further submitted that the plaintiffs in order to claim title by adverse possession have to comply with the requirement of
law as laid down in the case of Karnataka Board of Wakf -v-Government of India and others, reported in 2004 (10) SCC 779, in paragraph-11 of
which it is held as under:-
“11. In the eye of the law an owner would be deemed to be possession of a property so long as there is not 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. (See S.M. Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayapa v. State
of Karnataka). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors
that are to be accounted in cases of this nature. 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 not equities in his favour. Since he is trying to defeat the rights of the truer owner, it is for him to clearly plead and establish all facts
necessary to establish his adverse possession [Mahesh Chand Sharma (Dt.) v. Raj Kumar Sharma].â€
(emphasis supplied)
14. Thus, party seeking title by adverse possession must specifically plead the date of entry into possession and on which date his possession, if any,
becomes adverse to the true owner. She further relied upon the decision in the case of  Ganesh Shankar Shukla (since dead) through L.Rs.
â€"v-State of Orissa & another, reported in 2017 SCC On Line Ori 714 and submitted that the issue of adverse possession is a mixed question of
facts and law. Since the learned trial Court as well as the First Appellate Court came to a conclusion that the plaintiffs have not acquired any title by
adverse possession, the same is not open to be raised in this Second Appeal. She, therefore, prayed for dismissal of the appeal as it involves no
question of law much less any substantial question of law.
15. Heard learned counsel for the parties at length and perused the averments made in the plaint. Undisputedly, the plaintiffs have claimed right, title
and interest over the suit land as occupancy rayats. All throughout, they have tried to assert their right through lease deed dated 12th October, 1944.
At no place, in the body of the plaint, they have accepted the Government to be the true owner of the suit land. In order to establish the claim of title
through adverse possession, the basic requirement is to accept the title of the true owner, namely, the Government of Odisha against whom they claim
adverse possession. From the pleadings in the plaint, it is also apparent that the plaintiffs claim their title as occupancy rayats. Further, they claim title
by adverse possession on the plea that their possession is open and continuous for more than thirty years. The edifice of claim of title by adverse
possession cannot stand on the foundation of denying the title of the true owner. The plaint must contain specific pleadings of adverse possession
satisfying the requirements as set out in Karnataka Board of Waqf (supra), which is conspicuously absent in the pleadings of the plaint. Claiming title
over the suit land on the basis of adverse possession, is based on the principle “nec vi, nec clam, nec precarioâ€. Thus, mere pleadings of open,
continuous and long possession or enjoyment of the land without a specific assertion as to when the plaintiffs entered into possession and when the
same became adverse to the true owner, will not by itself be sufficient to claim title by adverse possession.
16. Further, relief claimed in the plant is not clear as to whether the plaintiffs claim right, title and interest over the suit land as occupancy rayats or by
adverse possession.
17. It is held by this Court in the case of Champa Bati Bewa (supra), an occupancy right cannot be claimed by adverse possession. It necessarily
infers that the requirements for claim of title as an occupancy rayat and that of adverse possession are not one and the same and in fact are mutually
opposite. Thus, in view of the ratio in the case of Praful Manohar Rele (supra), the claim of title by adverse possession cannot be raised as an
alternative plea of occupancy rayat.
18. Mr. Mishra, learned Senior Advocate, in course of hearing, submitted that although issue No.12 has been framed with regard to the claim of the of
title by adverse possession by the plaintiffs, but learned first Appellate Court has neither dealt with nor recorded any finding on the same, which itself
is a matter for consideration in the Second Appeal. In view of the discussion made above, when this Court has come to a conclusion that plea of
adverse possession is not available to be raised by the plaintiffs, the contention of Mr. Mishra, learned Senior Advocate loses its relevancy for
consideration.
19. Taking into consideration the facts and circumstances stated above, I am of the considered opinion that this Appeal involves no substantial question
of law for adjudication. Accordingly, the same stands dismissed.
Photocopies of the LCR received by this Court be sent back immediately.
