The High Court of Orissa recently comprising of a bench of Justice D. Dash remarked The classical requirements for establishment of a claim of acquisition of title by adverse possession are nec vi, nec calm, nec precario (without force, without secrecy, without permission). (Smt Satyanarayan Mahana & Another v Sri State of Orissa)
The bench noted that 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.
Facts of the Case
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 has been filed before this court
Contention of the Parties
The learned Senior Counsel for the Appellants (Plaintiffs) submitted 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, (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.
He further submitted 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.
The learned Senior Counsel for the Appellants (Plaintiffs) submitted 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, (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.
He further submitted 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.
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. That apart, an Encroachment case being initiated against the father of the Plaintiff No.1, he having paid the fine for the unauthorized occupation, the same further fortifies the position as to lack of hostile animus in possessing the property so as to say that it was never in denial of the title of the true owner and claiming title unto themselves. The pleading is completely silent that the Collector having recommended for settlement of the land in question in favour of the father of the Plaintiff No.1, when no approval was given by the Revenue Divisional Commissioner, any such overt act was displayed in showing that the possession since then was as of the owner in exercise of all the rights as such by denying the title of the true owner.”
The bench therefore remarked, “In that view of the matter even holding that the view taken by the lower Appellate Court that the suit as laid is not maintainable is not in consonance with the position of law as settled in the decision of the Hon’ble Apex Court in case of Ravinder Kaur (supra), the 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 Court dismissing the appeal remarked, “The factual setting of the cited case of Kshitish Chandra Bose (supra) 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 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.”
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SOURCE ' .latestlaws.com
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