1. This is an appeal against the judgment of our learned brother R.N. Misra, J. in Second Appeal No. 132 of 1967 which was against an affirming judgment of the Subordinate Judge, Berhampur in a suit for recovery of possession. The disputed property is 20 links north to south and about 150 links from east to west with a total area of about 3 cents and appertains the survey No. 495/2 of mouza Haladiapadar. Survey No. 495/2 is admittedly a Government Paramboke land being the part of a public path. Neither the plaintiff nor the defendant has any title thereto, the true owner being the State of Orissa which is not a party to the litigation.
2. The plaintiff brought the suit on the basis that he was in possession of the disputed 3 cents of land since 1961 and had been subjected to assessment by virtue of an encroachment proceeding under the Orissa Prevention of Land Encroachment Act, 1953 (Act XV of 1954) (hereinafter referred to as the Act). His name had been entered in the revenue accounts and he was in possession of the site which was being managed by his father Raghunath Panda. He contemplated to build a house on the site, but as he was in active service (admittedly serving in the Army at Poona), he could not do so. He complained that in May, 1964, defendant forcibly entered upon the disputed property and raised a thatched shed. The plaintiff, therefore, prayed for ejectment of the defendant from the disputed bit of land.
3. The defendant contended inter alia that the suit was not maintainable in the absence of the State of Orissa as a party. He asserted that this disputed Land was in possession of his maternal grandfather and after him it was in possession of his son Norosingha Sahu. His case is that in the year 1958 his maternal grandfather gave away this piece of land to him (defendant) for constructing a residential house thereon and since then he has been in possession thereof. The plaintiff's father Raghunath Panda being the village Karanam asked this defendant to pay him Rs. 15 as consideration to record his name as the enjoyer of the land and accordingly he paid the amount to him. But instead of recording this defendant's name as the person in possession of the disputed land, the Karnam recorded his own son's name as the person in enjoyment. Meanwhile, the defendant has been assessed under Orissa Act 15 of 1954.
4. At the trial, on the plaintiff's side his father alone had been examined. On the defendant's side he and one more witness were examined. Nine documents were produced in support of the plaintiff's case and 4 by the defendant. Ext. 4 is the notice issued by the Tahasildar, Berhampur to the plaintiff on 15-2-1962 under the Act. Ext. 5 is the certified copy of the 'B' memo issued in 1961, Exts. 6 and 7 are certified copies of Adangal entries for 1961 and 1957 respectively and Exts. 8 and 8/a are the cist receipts.
On the defendant's side, Ext. C is the notice of encroachment dated 26-8-1964 issued to the defendant and Ext. A is the certified copy of the order in the encroachment proceeding. Ext. D is a cist receipt granted to the defendant during the pendency of the suit.
5. The trial and first appellate court held that the plaintiff was in possession of the land before the defendant trespassed thereon, that the State of Orissa was not a necessary party and that as between the two trespassers the one who was in prior possession was entitled to restoration of possession through court. The trial court passed a decree in favour of the plaintiff which the first appellate court affirmed on appeal.
6. While dismissing the appeal, the first appellate court stated thus :
'The suit site admittedly belongs to the Government. The Government has accepted Taram Assessment from the plaintiff and treated his unauthorised occupation an unobjectionable. No step has been taken for eviction of the plaintiff under the provision of the Land Encroachment Act, 1954. Until and unless the plaintiff is evicted from the suit-site in accordance with the provisions of the Orissa Prevention of Land Encroachment Act, 1954, it cannot be assessed in favour of anybody else and as such the plaintiff is entitled to recover possession of the suit-site from the defendant, because he was the licensee under the Government on payment of Taram assessment and the defendant forcibly dispossessed him from the suit-site.'
7. Being aggrieved by this decision, the defendant came up to this Court in second appeal and it was contended on his behalf that once the plaintiff's status is found to be that of a licensee, he is not entitled to institute the suit particularly because by assessing the defendant and receiving cess from him, the recognition accorded in favour of the plaintiff must be taken to have been revoked and a licensee not coupled with a grant is not entitled to institute a suit for recovery of possession. This contention was rejected by our learned brother R.N. Misra, J. on the ground that it was no party's case that the plaintiff was a licensee and simply because the lower appellate court came to the conclusion that the plaintiff was a licensee, the defendant was not entitled to make a point out of it.
8. Having thus disposed of that objection, the learned Judge referred to certain circumstances of the case which, in his opinion, were not taken note of by the Courts below. Those are, firstly, the plaintiff does not stay in the village being in active military service and he claims to be in possession of the land through his father who is none else than the Karanam of the village. It is the Karanam of the village who in the first instance records in the relevant registers names of persons who encroach on any Government land. Under the rules, a village Officer such as the Karanam is, is himself not entitled to encroach on any Government waste land. There are certain scorings in the relevant registers which the Courts below had not taken into consideration. In these circumstances, despite being fully conscious of the limitations of a Judge hearing a second appeal imposed by Section 100 of the Civil Procedure Code, the learned single Judge came to the conclusion on the factual aspects of the case that the real trespasser is not the plaintiff, but his father the Karanam of the village and that consequently the suit filed by the plaintiff is not maintainable. On the point of law he held that assuming that the plaintiff had trespassed at the outset, his subsequent possession as trespasser should be actual possession and not constructive possession and as admittedly he is not in actual possession on of the disputed land, he cannot maintain the suit. He, therefore, allowed the appeal and dismissed the plaintiff's suit. This appeal is by leave filed by the plaintiff.
9. Survey No. 495/2 is 0.33 acre in extent. The dispute in this litigation relates only to 0.03 acre as indicated in the plan attached to the plaint. That both the plaintiff and the defendant are laving claim to the identical three decimals of Land is clear from Ext. A relevant portion of which may be quoted.
'Encroachment on path Poromboke by constructing a house of 0.03 on S. No. 495/2 by Sri Ganesh Padhi of Haladiapadar since 8 months. Last year the same plot was booked in L.E.C. No. 32/72 in favour of Govinda Charan Patnaik (obviously a mistake for Panda) s/o Ex. V.K. of Holdiapadar as fencing as noted in the B. Memo for which T.A. (Poromboke assessment) was charged being old and unobjectionable case. Now on inspection it is found on the ground that Sri Ganesh Padhi has occupied on the same plot and constructed a house in place of Govinda Charan Panda (not Patnaik) for a hotel for his livelihood. As the case is old and unobjectional one pending inspection of the T.O. (Taluk Officer) and T.A. proposed as per old B memo, cancelling the previous encroacher's name. The old B memo is enclosed.
(Sd) S. Padhi
R. S. 13-9-64
L. E.G. 1/74
Charge T.A. only. Vide order in the order sheet.
(Sd) F. M. Nanda
10. It is not the case of either party that charging of Taram assessment confers any title on any of the parties. In fact, both parties admit that the title to the land still vests in Government. While the plaintiff claims the land as the prior trespasser, the defendant's case is that the plaintiff was never in possession and that possession was throughout with him.
11. Apart from the finding recorded by the trial court and the first appellate court that there is no truth in the defendant's case that he has been in possession of the disputed bit of land since 1958 and the further finding that he is a subsequent trespasser, the recital in Ext. A, the relevant portion of which is extracted above, would go to show that the defendant occupied the disputed land only since 1964. Both the lower courts have arrived at the categorical finding that the plaintiff encroached on the disputed land in 1961 and thereafter remained in possession thereof through his father till he was dispossessed by the defendant in 1964. This finding is based on Exts. 4. 5, 6 and 7. These documents were admitted in evidence without any objection and consequently their genuineness. cannot now be disputed. Admittedly at the time these documents came into existence, the plaintiff's father was the Karanam of the village. Two conclusions are therefore possible. One is that the plaintiff was the real trespasser and the documents referred to above reflect the correct state of affairs. The other conclusion is that the plaintiff himself had never trespassed on the land but the trespass was only by the plaintiff's father but because he was Karanam of the village and under the Rules by which he was governed he could not himself encroach upon any Government waste land, he prepared records showing that the trespasser was his son. There is no positive evidence on record to arrive at the latter conclusion. It is not the case of the defendant that the real trespasser was the Karanam and not his son the plaintiff. Neither the defendant nor his witness D.W. 2 had deposed that the real trespasser was the plaintiff's father. In fact, their evidence is that it is the defendant who had encroached on the land. It, therefore, appears to us that the finding recorded by our learned brother that it is the plaintiff's father who must have trespassed on the land is merely a possibility based on the fact that he happened to be the Karanam of the village and had therefore the opportunity to prepare the records. But Ext. 1 shows that the Revenue Inspector had recorded therein that the encroachment being by a military man (obviously referring to the plaintiff) it is not open to any objection and he proposed Taram assessment which was duly endorsed by the Tahasildar. In the absence of any evidence to the contrary, it must be accepted that before passing the orders on Ext. 1, the Revenue Inspector and the Tahasildar were satisfied that the encroachment was by the plaintiff. In 1he well-known decision of the Supreme Court reported in AIR 1963 SC 302 (V. Ramachandra Ayyar v. Ramalingam Chettiar) their Lordships held that: --
'In hearing a second appeal, if the High Court is satisfied that the decision is contrary to law or some usage having the force of law, or that the decision has failed to determine some material issue of law or usage having the force of law, or if there is a substantial error or defect in the procedure provided by the Code, or by any other law for the time being in force which may have produced error or defect in the decision of the case upon the merits, it can interfere with the conclusions of the lower appellate court.'
What is an error or defect in the procedure to which Clause (c) of sub-section (1) of Section 100, C.P.C. refers is explained by their Lordships as--
'..... an error or defect connected with, or relating to the procedure; it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. That is why, even if the appreciation of evidence made by the lower appellate court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to a substantial error or defect in the procedure.'
'If a finding of fact has been recorded by the first appellate court without any evidence, that finding can be successfully challenged in second appeal because a finding of fact which is not supported by any evidence can be questioned under Section 100, and in that connection, it may be said that the decree proceeding on such a finding, discloses a substantial defect or error in procedure. This, however, does not mean that wherever the High Court thinks that the evidence accepted by the lower appellate court could not have been reasonably accepted, the High Court would be justified in interfering with the decision of the lower appellate court. All that it means is that it should be a case where the evidence, which is accepted by the lower appellate court, no reasonable person could have accepted and that really amounts to saying that there is no evidence at all.'
In coming to the conclusion that Exts. 1, 5, 6 and 7 represented the correct state of affairs, the lower courts were fully aware of the fact that at the material point of time the plaintiff's father was the Karanam of the village and it is on the basis of the reports made by him and records prepared by him that the Tahasildar had passed final orders. That apart, merely because the plaintiff's father was the Karanam, it does not necessarily follow that the records prepared by him in favour of his son must be false. It cannot, therefore, be said that no reasonable person could have arrived at the conclusion at which the lower courts had arrived that the plaintiff was the trespasser. We are, therefore, of the view that there is no sufficient justification for interfering with the finding of fact recorded by the courts below that the plaintiff was the trespasser.
12. It is not the plaintiff's case that right up from the time he had encroached on the disputed land in 1961, he was personally in possession of the land till he was dispossessed in 1964. His case is that he was in possession through his father. The question is whether such possession will be of any avail to him when he claims to evict the subsequent trespasser on the basis of his (plaintiff's) prior possession. It is well established that when both parties are relying on possessory title, it is necessary that they should prove effective possession over the property in order to succeed on the basis of possessory title. In Uppalapati Veera Venkata Satyanarayanaraju v. Josyula Hanumayamma, AIR 1967 SC 174, their Lordships held that in such cases effective possession may be either actual possession or possession through a tenant who must have paid rent voluntarily or under a decree to the person claiming possessory title. It is, therefore, clear that actual possession by the trespasser is not always necessary. It is sufficient if the possession is continued by a person who claims to remain in possession on behalf of the trespasser. To hold otherwise would lead to startling results requiring the trespasser to be physically present on the land throughout. If a person trespasses on the land and gets it cultivated through his servants without himself going on to the land, it cannot be said that he is not in possession of the land because he is not physically there. As the plaintiff's father himself has admitted that he was possessing the land on behalf of his son who was the original trespasser, the possession of his father would amount to possession of the plaintiff. It follows, therefore, that the plaintiff having trespassed on the disputed land in 1961 remained in possession thereof till he was dispossessed therefrom by the defendant in 1964. The plaintiff would, therefore, be entitled to a decree as prayed for by him.
13. In the result, we would allow this appeal, set aside the judgment passed in Second Appeal No. 132 of 1967 and restore those passed by the trial and first appellate courts. In the circumstances, both parties would bear their own costs in this appeal.
14. I agree.