Dibakar Pattanaik (since dead) after him Madhab Ch. Pattnaik and Others vs State of Orissa and Another

B.K. Nayak, J.—This is a Plaintiffs second appeal against a reversing Judgment.

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 & interest & 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.

The Plaintiffs 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 & 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 & 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 herd 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 & the Plaintiff has been illegally assessed to penalty & 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 u/s 80, Code of Civil Procedure

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 & 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 & the Plaintiff is not in continuous possession of the suit land, but only enjoys the fruits of the 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 & valid notice u/s 80. CPC & the suit was barred by limitation.

The Trial Court framed seven issues & 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 & 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 5.3.1987, the Learned Subordinate 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 & uninterrupted possession over the same for more than the statutory period.

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 & in the Hal Settlement draft R.O.R. (Parcha) was prepared in his favour & therefore he has title to the suit land by virtue of the lease. It is alternatively contended that the Plaintiff being in continuous & undisturbed possession of the suit land since 1942 for more than 30 years he has acquired title thereto by adverse possession. The Learned 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 & 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 & not adverse in nature.

The Plaintiffs 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 & 176/ 4 having a total area of Ac. 1.49 stand recorded in the name of the Plaintiff which have been assessed to rent & cess of one rupee & 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.

The concept of ''Nayabadi lands'' & 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 filling petitions gyving details before the Revenue Officer for lease of Nayabadi lands. Though, there is no definition of Nayabadi 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 Bageat land. Rule 20 provides that in 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 & 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 & occupation of the trees only. Rule 27 of the Rules fixes the rate of assessment for land where land is settled & 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 tight 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 & 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 Plaintiffs plea that the suit land was leased out in his favour &, 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.

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 & enjoyment of the tree & the fruits thereof. Such possession & user of the land is nothing but a licence granted for going over the land for collecting fruits of the tree & 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 & 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.

In the light of the aforesaid discussion, I find no merit in this second appeal which is accordingly dismissed.