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Judgment
Dr. A.K. Rath, J.
1.This is a defendants’ appeal against confirming judgment.
Plaintiffs-respondent nos.1 and 2 instituted the suit for declaration that the suit land belonged to them and for permanent injunction. The case of the
plaintiffs is that one Krushna Patra was the original owner of the suit land. The husband of the plaintiff no.1 purchased the suit land from Krushna
Patra by means of an unregistered sale deed dated 22.10.1949 for a consideration of Rs.22/-. Possession was duly delivered to him. After death of
husband of plaintiff no.1, the plaintiffs are in possession of the land. Plaintiff no.2, son of plaintiff no.1, constructed a house over the suit land and is
running his business. The defendants had no semblance of right, title and interest over the same. While the matter stood thus, the Tahasildar, Aska
initiated Encroachment Case No.166/96 against plaintiff no.2 under the provisions of the Orissa Prevention of Land Encroachment Act (“OPLE
Actâ€). Plaintiff no.2 filed show cause claiming title over the same. The case was dropped on 9.10.96. It is further pleaded that Krushna Patra
alienated different parcels of land appertaining to survey no.211 to different persons. One Krushna Chandra Tripathy, who had purchased a portion of
the land appertaining to survey no.211, instituted T.S. No.56/82 in the court of the learned Munsif, Aska for declaration of title. Learned trial court
decreed the suit holding inter alia that the suit land was the raiyati land of the plaintiffs. No appeal was preferred against the said judgment. One
Banamali Behera, another purchaser of a portion of survey no.211, instituted T.S. No.118/84 in the court of the learned Munsif, Aska for declaration
of right, title and interest, confirmation of possession and certain other ancillary reliefs. The suit was decreed. State of Orissa and its functionaries filed
T.A. No.15/90 before the learned Subordinate Judge, Aska. The appeal was eventually dismissed. The defendants made an attempt to evict the
plaintiffs from the suit land. After serving notices on the State under Sec.80 C.P.C. and on the N.A.C. under Sec.349 of the Orissa Municipal Act,
they instituted the suit seeking the reliefs mentioned supra.
The defendant nos.2 and 3 entered contest and filed written statement pleading inter alia that the land appertaining to survey no.211 vested in the
State. The plaintiffs are in unauthorised occupation of the suit land. The alleged sale deed is a fake one. The plaintiffs have no semblance of right, title
and interest over the same. The land had been granted by the State of Orissa in favour of N.A.C., Aska. The defendant no.1 adopted the written
statement filed by the defendant nos.2 and 3.
Stemming on the pleadings of the parties, learned trial court struck four issues. Parties led evidence. On an anatomy of the pleadings and evidence
on record, learned trial court came to hold that the plaintiffs are in possession of the suit land. The suit land does not belong to the Government. The
Government had no authority to deal with the matter. It had the occasion to deal with the identical mater arising out of the same survey no.211. The
finding rendered by it in T.S. No.118/84 had been affirmed in T.A. No.15/90. In T.S. No.56/82, the same finding was rendered. State was a party to
the suit. But no appeal was preferred. It further held that the suit land was the rayati land of the plaintiffs. The eviction proceeding initiated by the
Tahasildar, Aska had been dropped. Held so, it decreed the suit. The unsuccessful defendant nos.2 and 3 filed R.F.A. No.116 of 2004 before the
learned Adhoc Additional District Judge, Fast Track, Aska, which was eventually dismissed.
The second appeal was admitted on the following substantial questions of law.
“(1) Whether the courts below are justified in placing reliance on the unregistered sale deed dated 22.10.1949 and declare the title of the plaintiffs?
(2) Whether the courts below are justified in decreeing the suit when the plaintiffs failed to prove classical requirements of adverse possession
“nec vi nec clam nec precario†?
(3) Whether the judgments passed in the T.S. Nos.56/82 and 118/84 of the court of the learned Munsif, Aska have any relevance in the present suit
?â€
Mr. A.C. Mohapatra, learned counsel for the appellant, submits that there is neither any pleading nor any evidence on record that the plaintiffs are
in possession of the suit land fore more than 30 years peacefully, continuously and to the hostile animus of the true owner. Learned courts below
committed a manifest illegality in decreeing the suit.
Per contra, Mr. D. Mohapatra, learned counsel for the respondents, submits that the suit land appertaining to survey no.211 is a vast area. Krushna
Patra was the original owner of the suit land. He alienated different parcels of survey no.211 to different persons. When N.A.C., Aska as well as
Tahasildar, Aska disturbed possession, some of the purchasers instituted suits before the learned Munsif, Aska. Placing reliance on Exts.2 and 3, he
submits that one Krushna Chandra Tripathy, who had purchased a portion of the land appertaining to survey no.211, instituted T.S. No.56/82 in the
court of the learned Munsif, Aska for declaration of title. The suit was decreed. No appeal was filed. Another purchaser, namely, Banamali Behera,
instituted T.S. No.118/84 in the court of the learned Munsif, Aska for declaration of right, title and interest, confirmation of possession and certain
other ancillary reliefs. The suit was decreed. The appeal filed by the State of Orissa was eventually dismissed. The same was affirmed by this Court
in S.A. No.114 of 1993. In all the suits, it was held that the land appertaining to survey no.211 was the raiyati land of Krushna Patra. Thus it is no
more open for the State or the N.A.C. to say that they are the owner of the suit property. The defendants have no semblance of right, title and
interest over the suit property. He further contends that there is no dispute between the original owner and the plaintiffs.
The land appertaining to survey no.211 is a big patch of land. Krushna Patra alienated different parcels of survey no.211 to different persons. One
Krushna Chandra Tripathy, who had purchased a portion of the land appertaining to survey no.211, instituted T.S. No.56/82 for declaration of title
against the State of Orissa and others in the court of the learned Munsif, Aska. The suit was decreed. No appeal was filed. Another purchaser,
namely, Banamali Behera, instituted T.S. No.118/84 in the court of the learned Munsif, Aska for declaration of right, title and interest, confirmation of
possession and certain other ancillary reliefs. It was held that the suit land was the raiyati land of Krushna Patra. The suit was decreed. N.A.C., Aska
was a party to the suit. N.A.C. had not filed any appeal. The State of Orissa and its functionaries filed T.A. No.15/90 before the learned Subordinate
Judge, Aska, which was eventually dismissed. They filed S.A. No.114 of 1993 before this Court, which was also dismissed. The said judgment has
attained finality. In both the suits, learned trial court held that the land appertaining to survey no.211 was the raiyati land of Krushna Patra. To press
his legal necessity, Krushna Patra alienated some portion of the land to the husband of the plaintiff no.1 by means of an unregistered sale deed dated
22.10.1949 for a consideration of Rs.22/- and delivered possession. Both the courts concurrently held that the suit land was the raiyati land of Krushna
Patra. The defendants had no semblance of right, title and interest over the suit property. The substantial questions of law enumerated in ground nos.1
and 3 are answered in affirmative. The substantial question of law enumerated in ground no.2 does not arise for consideration.
A priori, the appeal fails and is dismissed. There shall be no order as to costs.