HIGH COURT OF ORISSA : CUTTACK SECOND APPEAL NO.153 OF 1987 From the judgment dated 05.03.1987 and decree dated 27.3.1987 passed by Shri S.S. Mishra, Sub-ordinate Judge, Dhenkanal in Title Appeal No.15/4 of 1984-86 reversing the judgment dated 27.09.1984 and decree dated 25.10.1984 passed by Shri S.K. Pattnaik, Addl. Munsif, Hindol in Title Suit No.10 of 1981. ------------- Dibakar Pattanaik (since dead) after him Madhab Ch. Pattanaik and others ……. Appellants. Versus. State of Orissa & another ……….. Respondents For Appellant : Mr. B. Pradhan For Respondents : Additional Standing Counsel PRESENT THE HON’BLE SHRI JUSTICE B.K.NAYAK ------------------------------------------------------------------------------------------ Date of hearing : 24.06.2010 : Date of judgment: .08.2010 B.K.NAYAK, J. This is a plaintiff’s second appeal against a reversing judgment. 2. The plaintiff filed Title Suit No.10 of 1981 in the court of learned Additional Munsif, Hindol seeking relief of declaration of his right, title and interest and confirmation of possession over the suit land measuring Ac.0.02 appertaining to Hal Settlement Plot No.2715 under Holding No.667 in village-Nizagarh, Hindol. 3. The plaintiff’s case is that the suit Hal Plot No.2715 corresponds to Sabik Plot No.4587. The said Sabik plot with a mango tree standing thereon had been leased out in his favour in Nayabadi Case No.1 of 1942- 43 and since the date of lease the plaintiff has been continuously in possession of the same without any disturbance from any quarter. The said land had been recorded in his favour in the record of right and he had been paying rent in respect of the said land. In the Hal Settlement, the said land has been recorded as plot no.2715 in favour of the State of Orissa but in the remarks column of Hal R.O.R., the plaintiff’s possession has been noted. Parcha in respect of the said plot had originally been issued in favour of the plaintiff, but in the final R.O.R. it has been wrongly recorded in favour of the State. In view of such recording, Encroachment Case no.1 of 1981-82 was initiated against the plaintiff under the Orissa Prevention of Land Encroachment Act, 1972 and the plaintiff has been illegally assessed to penalty and back rent in spite of his objection. It is also pleaded by the plaintiff that he is in continuous, undisturbed possession of the suit land for more than the statutory period. With the aforesaid pleadings the suit was filed after serving notice under Section 80, C.P.C. 4. The defendants filed a written statement stating that in the Lease Case No.1 of 1942-43 the plaintiff has been declared as “PHALA BHOGI” of the mango tree standing on the suit plot and accordingly in the Hal Settlement the land has been recorded in favour of the State with possession note of the plaintiff in the remarks column of the R.O.R. only with respect to the mango tree. The land in question was not recorded in favour of the plaintiff during the Durbar period and the plaintiff is not in continuous possession of the suit land, but only enjoys the fruits of the 2 tree. Since the plaintiff is an encroacher over the suit land an encroachment case has been rightly started against him. It was also pleaded that there was no legal and valid notice under Section 80, C.P.C. and the suit was barred by limitation. 5. The trial court framed seven issues and on consideration of the evidence on record decreed the suit with the finding that the plaintiff got the suit land on lease in the year 1942-43 and that since then he is continuously possessing the same without any disturbance from any quarter. The State-respondent challenged the said trial court decree by filing Title Appeal No.15/4 of 1984/86 before the learned Subordinate Judge, Dhenkanal. By judgment dated 05.03.1987, the learned Subordiante Judge allowed the appeal holding that the plaintiff has not been able to prove that he has title over the suit land by virtue of the lease in Nayabadi Case No.1 of 1942-43 or by way of his continuous and uninterrupted possession over the same for more than the statutory period. 6. The learned counsel for the appellant strenuously contended that the suit plot was leased out in favour of the plaintiff by the Ex-Ruler in Nayabadi Case No.1 of 1942-43 as evident from the Jamabandi slip, Ext.7 and in the Hal Settlement draft R.O.R. (Parcha) was prepared in his favour and therefore he has title to the suit land by virtue of the lease. It is alternatively contended that the plaintiff being in continuous and undisturbed possession of the suit land since 1942 for more than 30 years he has acquired title thereto by adverse possession. The learned 3 State Counsel, on the other hand, submits that the suit land was never leased out in favour of the plaintiff, in 1942, but only one mango tree standing thereon was leased out and therefore the possession of the plaintiff, if any, over the suit land was impliedly permitted only for the purpose of enjoying the fruits of the tree, which must be held to be permissive and not adverse in nature. 7. The plaintiff’s claim of title to the suit land on the basis of lease said to have been granted by the Ex-ruler in Nayabadi Case no.1 of 1942- 43 is mainly based on the Jamabandi slip issued under Ext.7. In Ext.7 Sabik Plot Nos. 176/1, 176/2, 176/3 and 176/4 having a total area of Ac.1.49 stand recorded in the name of the plaintiff which have been assessed to rent and cess of one rupee and six pies. So far as the Sabik plot No.4587 is concerned, which is undisputedly the suit plot, no land appertaining thereto is shown to have been leased or recorded in favour of the plaintiff. There is however mention that one mango tree appertaining to that plot has been assessed to rent of 3 pies only. In Ext.7 a reference has been made to the Nayabadi record no.1 of the year 1942-43. 8. The concept of ‘Nayabadi lands’ and manner of settlement thereof finds mention in Chapter-VII of the Revenue Rules of Hindol State,1939. Rule-1 of Chapter-VII makes provision for filing petitions giving details before the Revenue Officer for lease of Nayabdi lands. Though, there is no definition of Nayabdi land in the Rule, Clause-(c) of Rule 1 makes it clear that the petition for lease may relate to the land, which may be forest land, Gocher land, waste land or Bagaet land. Rule 20 provides that in 4 case of settlement of Bagaet lands or trees standing on State or Sarkari lands within the village, boundary tenants who now enjoy the fruits thereof may be given preference, provided that usual fee is paid by such tenant and the village public are not highly inconvenienced by settlement of such Bagaet land. Rule 21 provides that when it is found that a Bagaet land in or near any village cannot be leased out in consideration of its utility to general village public the trees standing on such lands may be leased out on payment of one rupee per acre in which case the lease holder shall have the right of use and occupation of the trees only. Rule 27 of the Rules fixes the rate of assessment for land where land is settled and for trees where only trees are settled. In case of settlement of trees only, without settlement of land, the rate of assessment is only Re.0-0-3 ( 3 pies) per tree per year. Considered in the light of the aforesaid Rules, it is quite apparent from Ext.7 that the suit plot itself was not leased out in favour of the plaintiff, but only one mango tree standing thereon was leased out and assessed to annual rent as permissible under the Rules. The plaintiff, who was examined as P.W.1, has admitted in his evidence that he had been paying rent to the Government for the mango tree standing on the suit land. It is further admitted by him that in the year 1942 lease was given to him to enjoy the usufructs of the mango tree. With regard to his possession he has further admitted that he put fence around the suit land for the purpose of protecting the tree from the mischief of miscreants. The fence is put up every year. The plaintiff’s plea that the 5 suit land was leased out in his favour and, therefore, he acquired title thereto by virtue of such lease cannot therefore be accepted. Ext.9 is the Parcha (Draft R.O.R.) of the Hal Settlement in respect of the suit plot, which was prepared in favour of the plaintiff. However, admittedly, in the final R.O.R. of the Hal Settlement the suit plot has been recorded in favour of the State. Since the suit plot was not leased out in favour of the plaintiff by the Ex-ruler, the mere preparation of the draft R.O.R. in favour of the plaintiff at the initial stage of the Hal Settlement would not create or confer title in his favour, since it is the settled proposition that R.O.R. neither creates nor extinguishes title. 9. Lease of the mango tree standing on the suit land in favour of the plaintiff necessarily implies grant of permission by the Ex-ruler to possess the suit land for the limited purpose of preservation, protection and enjoyment of the tree and the fruits thereof. Such possession and user of the land is nothing but a licence granted for going over the land for collecting fruits of the tree and may include raising fences on or around the land so as to prevent outsiders from damaging the tree or taking away the fruits. Such nature of possession of the land, which is implicitly permitted for enjoyment of the fruits of the tree, is permissible and not adverse to the title of the true owner of the land. The plaintiff therefore, cannot be said to have acquired title to the suit land by virtue of adverse possession. 10. In the light of the aforesaid discussion, I find no merit in this second appeal which is accordingly dismissed. …………………… 6 B.K.Nayak,J. Orissa High Court, Cuttack The 31st. August, 2010/Gs. 7