Dr. A.K. Rath, J
1. This is a plaintiff’s appeal against confirming judgment in a suit for declaration of title, confirmation of possession and permanent injunction.
2. The case of the plaintiff was that plot no.2009 appertaining to khata no.1259, area Ac.0.71 dec. of Nayagarh town belongs to the Government. He occupied Ac.0.02 dec. of land out of Ac.0.71 dec. in the year 1950 and constructed two
pucca rooms. He is in possession of the land since 1950 peacefully, continuously and with the hostile animus to the defendants for more than the statutory period and as such perfected title by way of adverse possession. While the matter stood
thus, the Tahasildar, Nayagarh, defendant no.2, initiated Encroachment Case No.103/88 against him. He appeared and filed show cause. No opportunity of hearing was provided to him. Order of eviction was passed, whereafter he was
directed to vacate the possession of the suit land. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.
3. The defendants filed written statement pleading inter alia that the suit land is the Government land. The plaintiff was not in possession of the suit land since 1950. In the year 1988, Encroachment Case No.103/88 was initiated against him on
the basis of the report of the R.I., Nayagarh. Order of eviction was passed.
4. Stemming on the pleadings of the parties, learned trial court struck six issues. Parties led evidence, oral and documentary. The trial court dismissed the suit holding inter alia that the plaintiff has not perfected title by way of adverse
possession. The suit is not maintainable in view of the embargo contained under Sec.16 of the Orissa Prevention of Land Encroachment Act. Unsuccessful plaintiff filed appeal before the Additional District Judge, Nayagarh, which was
subsequently transferred to the court of the Adhoc Additional District Judge, Fast Track Court, Nayagarh and renumbered as T.A. No.13/4 of 2003/2000. The appeal was dismissed.
5. Heard Miss Neha Sharma, learned Advocate, on behalf of Mr. S.P. Mishra, learned Senior Advocate for the appellant and Mr. Swyambhu Mishra, learned A.S.C. for the State-respondents.
6. Miss Sharma, learned Advocate for the appellant, submits that the plaintiff is in possession of the suit land since 1950. He had constructed two rooms over the same. He is in possession of the land peacefully, continuously and with the
hostile animus to the defendants and as such perfected title by way of adverse possession. Initiation of encroachment case is bad in law. Notwithstanding the order of eviction was passed by the defendant no.2 under the OPLE Act, the suit is
maintainable.
7. Per contra, Mr. Mishra, learned A.S.C. for the State-respondents, submits that both the courts held that the plaintiff has not perfected title by way of adverse possession. These are finding of facts.
8. The question that arises for consideration is as to whether the plaintiff can institute the suit for declaration of title on the basis of adverse possession ?
09. An identical matter came up for consideration before this Court in the case of Nabin Chandra Mohanta v. State of Orissa (R.S.A. No.396 of 2004 disposed of on 22.02.2019). Taking a cue from the decision of the apex Court in the case of
Gurdwara Sahib v. Gram Panchayat Village Sirthala and another, (2014) 1 SCC 669, this Court held :
“10. In Gurdwara Sahib, the plaintiff-appellant filed the suit for decree of declaration to the effect that it had become the owner of the suit property by adverse possession, correction of ROR and permanent injunction. The suit was partly decreed by the trial court
granting relief of injunction. The first appeal against that part of the judgment, whereby relief of declaration was denied was dismissed by the Additional District Judge. In the second appeal, the relief of declaration by way of adverse possession was denied holding
that such a suit is not maintainable. The second appeal was dismissed. The matter travelled to the Apex Court. The Apex Court held:
“8.There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured
into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.â€
                                                                                                                        Â
                                                                                                        (emphasis
laid)
11. ……In no uncertain terms, the Apex Court held that even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant
and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence. The same is ratio decidendi. The High Court is bound under Article 141 of the Constitution of India…..
xxx xxx xxx
14. In State of Orissa vs. Bhanumali (Dead) Nurpa Bewa and others, AIR 1996 ORISSA 199, a question arose that whether the decision of the Revenue Officer in the proceeding under the Orissa Prevention of Land Encroachment Act will operate as res judicata in the
subsequent suit filed by the plaintiff for declaration of title and recovery of possession. This Court held that the decision of the Revenue Officer in the proceeding under the Orissa Prevention of Land Encroachment Act can neither operate as res judicata nor Sec.16
thereof can stand as a bar relating to the question of title in the subsequent civil suit by the plaintiffs. But then, in view of the decision of the Apex Court in the case of Gurdwara Sahib (supra), the plaintiff cannot maintain the suit for declaration of title by way of
adverse possession.â€
10. The matter may be examined from another angle. The date of entry into the suit land has not been mentioned. 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. Both the courts concurrently held that the plaintiff has not perfected title by way of adverse possession. These are
essentially finding of facts. There is no perversity in the said findings.
11. Resultantly, the appeal fails and the same is dismissed, since the same does not involve any substantial question of law. No costs.
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