The classical requirements for establishment of a claim of acquisition of title by adverse possession are nec vi, nec calm, nec precario: Orissa High Court

IN THE HIGH COURT OF ORISSA CUTTACK R.S.A. NO. 126 OF 2018 In the matter of an appeal under section 100 of the Code of Civil Procedure assailing the judgment and decree dated 25.11.2017 and 14.12.2017 respectively passed by the learned District Judge Sonepur in R.F.A. No.29 9 of 2005 2017 confirming the judgment and decree dated 26.02.2005 and 17.03.2005 respectively passed by the learned Additional Civil Judge Sonepur in C.S. No.203. Smt. Satyanarayan Mahana & Another :: VERSUS :: Sri State of Orissa : Respondent Advocate(s) who appeared in this case by Hybrid ArrangementMode: M s. G. Mishra For Appellants Mr.A.K.Mishra For Respondents A. G. A. Sr. Advocate D. K. Patra A. Dash J.R. Deo A. Khandal Advocates.. THE HON’BLE MR. JUSTICE D.DASH Date of Hearing ::23.03.2021 :: Date of Judgment 23.03.2021 The Appellants by filing this Appeal under section 100 of the Code of Civil Procedure have assailed 2 = the judgment and decree dated 25.11.2017 and 14.12.2017 respectively passed by the learned Additional District Judge Sonepur in R.F.A. No.29 9 of 2005 2017. By the said judgment and decree the lower Appellate Court has confirmed the judgment and decree dated 26.02.2005 and 17.03.2005 respectively passed by the learned Civil JudgeSonepur in C.S. No.23 of 2003. For the sake of convenience in order to avoid confusion and bring in clarity the parties hereinafter have been referred to as they have been arraigned in the trial court. Plaintiffs case is that the land which is the subject matter of the Suit belonged to the State of Orissaand it stands recorded as such in the Record of Right. The lands are cultivable lands and the father of the Plaintiff No.1 made those lands fit for cultivation by dint of his own effort and since then he has been in possession of the suit land since the year 1940 till his death. On the death of the father of the Plaintiff No.1 his son the Plaintiff No.1 and son in law the Plaintiff No.2 have been in possession of the said property. The present Plaintiff No.1 who being the son and the other Plaintiff being the son in law of Nimai Mahana are in possession of the same. It is stated that an Encroachment Case had been initiated against the father of the Plaintiff No.1 for his 3 = unauthorized cultivation of the suit property wherein he had prayed for settlement of the same. To that effect he had filed an application before the Sub Divisional Officer Sonepur which had been rejected. An appeal being preferred the Collector Bolangir in Encroachment Appeal No.40 60 61 was pleased to order that the land be settled in favour of the father of Plaintiff No.1. Saying so as mandated in law the matter being forwarded for due approval by the Revenue Divisional Commissioner the matter however has rested there without further development. In the subsequent Settlement operation the record of right in respect of the suit land has been prepared in the name of the State. There being a move before the Revenue Authorities for correction of the said record of right that has yielded no fruitful result. open peaceful and continuous possession of the suit land to the knowledge of the Defendant State and its officials all along since the time of Nimai Mahana. It is stated that for such long continuous and uninterrupted possession of the land in question as its owner to the knowledge of the true owner i. e. the State the Plaintiffs have acquired title in respect of the suit land by adverse possession. They assert to have been all along in possession of the suit land denying the title of the State and for such long possession the title of the State is said to have been extinguished. It is the case of the Plaintiffs that they have been in 4 = The Defendants State appearing in the suit contested the same without filing the written statement. The Trial Court on the above rival pleadings framed as many as nine issues. In answering the crucial issues touching upon the claim of the Plaintiffs as to the acquisition of the title over the suit land by adverse possession and extinguishment of the right title and interest of the true owner i.e. the State in respect of the suit land upon analysis of evidence on record in the backdrop of the case as projected by the Plaintiffs in their pleading has held that the Plaintiffs have failed to establish their claim as laid. Having said so the Plaintiffs have been non suited. Being aggrieved by the same an Appeal under section 96 of the Code being filed the lower Appellate Court has concluded that the Plaintiffs have failed to satisfy the required ingredients for establishment of their claim of acquisition of title over the suit land by adverse possession by leading clear cogent and acceptable evidence. Furthermore relying upon the decision of the Apex Court in Bhim Singh & Others Vs. Zile Sing & Others A.I.R. 2006 P&H 195 it has been said that the suit at the instance of the Plaintiffs based on the claim of acquisition of the title by way of adverse possession is not maintainable which is only available in defence as shield but not to the suitor as sword. Hence the Appeal. 5 = Mr. Gautam Mishra learned Senior Counsel for the Appellants submits that the position of law has in the meantime undergone change as to the maintainability of the suit at the instance of the person claiming title over the suit land by adverse possession. In this connection he has referred to the recent decision of the Hon’ble Apex Court in case of Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others 8 SCC 729 laying down the legal position that the suit at the instance of the person claiming acquisition of title over the land in question by adverse possession is squarely maintainable and accordingly it can also be used as sword by the suitor besides being used as shield by the defender. He further submits that the findings of the Courts below that the Plaintiffs have not acquired title over the suit land by adverse possession is based on perverse appreciation of evidence and the exercise as to appreciation of evidence according to him is based on erroneous view point of law and without taking into account the material evidence on record as to the open peaceful long continuous and interrupted possession of the Plaintiffs since the time of Nimai Mahana the finding on that score has been recorded against the Plaintiffs. He thus submits that the following substantial questions of law surface in the case standing to be answered in this Appeal: 6 = 1) That the lower Appellate Court has committed error of law by relying upon the decision in case of Bhim Singh Vs. Zile Singhto non suit the Plaintiffs since they base their case in claiming the reliefs upon their claim of acquisition of title over the suit land by way of adverse possession 2) That Courts below committed patent error of record by ignoring the pleadings in the plaint as also the evidence which specifically make out a case of acquisition of title over the suit land by the Plaintiffs by adverse possession 3) That the judgments rendered by the Courts below run contrary to the ratio decided in case of Kshitish Chandra Bose Vs. Commissionerthe same hardly has any impact on the ultimate result of the Suit wherein the claim of declaration as to prescriptive title of the Plaintiffs over the suit land and confirmation of possession is found to have been rightly negated. The factual setting of the cited case of Kshitish Chandra Bose are wholly distinguishable. There the Municipality had made several attempts to prevent the Plaintiff and his father from storing the building materials. It having been proved that the Plaintiffs father has been in possession of the land involved therein prior to and after the municipal survey oral evidence let in by the Plaintiffs also established his case of actual possession during all the period and that has been after the settlement by the landlord way back in the year 1921. With such = 11 = standing evidence on record the High Court having interfered with the findings recorded by the Courts below the Hon’ble Apex Court has negated the same. In view of the aforesaid the said decision does not come to the aid of the case of Plaintiffs. In the wake of above discussion and reasons the submission of the learned Senior Counsel for the Appellants Plaintiffs) that there surfaces substantial questions of law in the case as indicated in para 6 meriting admission of this Appeal cannot be countenanced with. Accordingly the Appeal stands dismissed. No order as D. Dash J. to costs. Orissa High Court Cuttack Dated the 23rd day of March 2021 HimansuNar = 12 = 

Summary: The possession must be adequate in continuity, in publicity and in extent to show that it was adverse to the true owner as that of a competitor to the title of the true owner. This was said in the case of Smt Satyanarayan Mahana &amp; Another v Sri State of Orissa [R.S.A. NO. 126 OF 2018] by Mr. Justice D. Dash in the High Court of Orissa, Cuttack. The facts of the case are that the land which is the subject matter of the Suit stands recorded as the States land in the Record of Right. The lands are cultivable lands and the father of Plaintiff has been in possession of the suit land since the year 1940 till his death. On the death of the father, the plaintiffs are in possession of the said property. It is stated that for such long continuous and uninterrupted possession of the land in question as its owner to the knowledge of the true owner, i.,e., the State, the Plaintiffs have acquired title in respect of the suit land by adverse possession. The Trial Court and the lower appellate Court concluded that the Plaintiffs have failed to satisfy the required ingredients for establishment of their claim of acquisition of title over the suit land by adverse possession by leading clear, cogent and acceptable evidence. Hence, the appeal under section 100 of the Code of Civil Procedure. The plaintiff contended by referring to the case of Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others [(2019) 8 SCC 729] laying down the legal position that the suit at the instance of the person claiming acquisition of title over the land in question by adverse possession is squarely maintainable and accordingly, it can also be used as sword by the suitor besides being used as shield by the defender. Secondly, he contended that the findings of the Courts is based on perverse appreciation of evidence and the exercise as to appreciation of evidence, according to him, is based on erroneous view point of law and without taking into account the material evidence on record as to the open, peaceful, long, continuous and interrupted possession of the Plaintiffs since the time of their father the finding on that score has been recorded against the Plaintiffs. The Court after analyzing the facts of the case and the settled position of law on the case opined that “So even if it is accepted that the father of the Plaintiffs since then continued to possess the suit land by cultivating over there, it goes without saying that it was not in denial of the title of the true owner-State but upon acceptance or acknowledgment of the title of the true owner with the hope and expectation of final settlement of the same. The hostile animus thus squarely lacks in the matter of possession of the property and intent behind possession in the admitted facts and circumstances was never to deny the title of the true owner”. The father having paid the fine for the unauthorized occupation in the encroachment case, further fortifies the position as to lack of hostile animus. Thus, the appeal was dismissed. Click here to read judgment