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State of Orissa Vs. Tarinisen Mahanto and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 136 of 1973
Judge
Reported in60(1985)CLT274; 1985(II)OLR266
ActsLimitation Act - Schedule - Article 149; Limitation Act, 1963 - Schedule - Articles 65 and 112; Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 9
AppellantState of Orissa
RespondentTarinisen Mahanto and anr.
Appellant AdvocateAdv.-General
Respondent AdvocateK.N. Sinha and ; S.D. Das, Advs.
DispositionAppeal dismissed
Excerpt:
.....the learned subordinate judge after permitting the parties to lead evidence on the issues framed by it recorded the following findings :(a) the plaintiff has failed to prove identity of the disputed tank comprising plots nos. thus, the suit must be held to be bad for non-joinder of necessary parties......pleas were taken challenging the maintainability of the suit. the defendant no 1 claimed the suit tank as belonging to his family alleging that his grandfather had excavated it with his own money about 80 years back and the same is being possessed by the defendant no. 1 along with his co-sharers since the time of his grandfather. their possession of the tank being continuous to the knowledge of all concerned for more than the statutory period, it is claimed that the defendant no. 1 and his co-sharers have acquired tide thereto by adverse possession. he alleged that members of his family have effected improvements and renovated of the tank from time to time and they have been exercising various acts of ownership all through. the transfer of the tank by the state in favour of the.....
Judgment:

P.C. Misra, J.

1. The unsuccessful plaintiff in T. S. No. 1 of 1971 of the Court of the Subordinate Judge, Keonjhar, is the appellant in this appeal. The suit was one for declaration of right, title and interest in respect of the disputed tank and also for a declaration that the order in Cri. Misc. Case No. 18 of 1969 is illegal and inoperative and for recovery of possession of the suit properties described in the schedule appended to the plaint. The plaint describes the suit properties to be a tank comprising of plot No. 397 area A. 2.83 decimals and plot No. 399 area A. 0. 31 decimals, total A. 3. 19 decimals, appertaining to khata No. 61 in mouza Machhagarh in the district of Keonjhar.

2. The case of the plaintiff (State of Orissa) in brief as described in the plaint is as follows :

' During the Darbar administration the grandfather of the first defendant excavated the tank in dispute at his own expenses for the benefit of the villagers after obtaining the permission of the State. It is alleged that the State reserved its owner ship over the tank and the public in general were permitted to use the tank from its very inception. At no point of time, the defendant No. 1 nor his predecessor-in-interest had ever asserted or exercised any tight of ownership over the said tank. In the settlement of the year 1915 the tank .stood recorded in the name of the State. The State of Orissa transferred the tank to Machhagarh Gram Panchayat for a prsclculture in the year 1956. Some time in the year 1968, the first defendant created trouble as regards the possession of the tank with the said Gram Panchayat and for that reason a proceeding under Section 145, Cr. P. C. was initiated. That proceeding, however terminated in favour of defendant No. 1 and his possession over the tank was declared. In the said proceeding under Section 145, Cr. P. C. (Cri. Misc. Case No. 18 of 1969). Having lost- in the said proceeding the plaintiff has filed the suit for the reliefs indicated above.

3. The first defendant contested the suit. In the written statement all the plaint allegations have been denied and various pleas were taken challenging the maintainability of the suit. The defendant No 1 claimed the suit tank as belonging to his family alleging that his grandfather had excavated it with his own money about 80 years back and the same is being possessed by the defendant No. 1 along with his co-sharers since the time of his grandfather. Their possession of the tank being continuous to the knowledge of all concerned for more than the statutory period, it is claimed that the defendant No. 1 and his co-sharers have acquired tide thereto by adverse possession. He alleged that members of his family have effected improvements and renovated of the tank from time to time and they have been exercising various acts of ownership all through. The transfer of the tank by the State in favour of the Gram Panchayat has been termed as a mere paper transaction which has not created any right in favour of the Gram Panchayat. The story of the plaintiff that the grandfather of defendant No. 1 obtained permission of the Darbar administration for excavating the tank in the year 1921-30 has been stoutly denied. On the other hand, it has been alleged that several proceedings had been initiated against this defendant in respect of the said tank, but in all those proceedings the possession of the family of defendant No. 1 over the tank has been respected. The defendant No. 1 prays for dismissal of the suit also on the ground that it is bad for defect of parties inasmuch as all the co-sharers of defendant No. 1 who have interest in the tank have not been impleaded in this suit.

4. The learned Subordinate Judge after permitting the parties to lead evidence on the issues framed by it recorded the following findings :

(a) The plaintiff has failed to prove identity of the disputed tank comprising plots Nos. 397 and 399.

(b) Assuming the State was owner of the disputed tank, defendant No. 1 and his co-sharers have acquired valid title by adverse possession.

(c) The co-sharers of defendant No. 1 having not been impleaded no effective decree can be passed as prayed for and for that reason the suit must be held to be incompetent for want of necessary parties,

5. With these findings the learned trial Court dismissed the suit. In this appeal the plaintiff-appellant contends that the findings arrived by the learned Subordinate Judge are not supported by the evidence on record and in the facts and circumstances of the case, the suit against defendant No. 1 alone is maintainable.

6. At the outset, we may indicate that the expression 'adverse possession' means a hostile possession, i. e., possession in denial of the title of the true owner- The defendant having claimed title by adverse possession it necessarily implies that some one else other than the family of the defendant No. 1 was the true owner of the property. R.O.R. in respect of khata No. 61 to which the suit plots appertain prepared in the year 1915 during the Darbar administration of the Keonjhar State, show that the said khata stood recorded in the name of State Superintendent who obviously was the representative of the State. Various other documents proved in the suit on behalf of the plaintiff together with the admission of defendant No. 1 in the written statement that the defendant No. 1 along with his co-sharers have acquired title by adverse possession in respect of the tank irrespective of the recording of the name of the State in different settlements as owners of the tank would establish beyond doubt that the State owned the properties in dispute at one point of time. The question, therefore, which requires examination is as to whether the said antecedent title of the plaintiff has been lost by adverse possession as claimed by the defendant No. 1 in this suit.

7. The plaintiff's suit being one for possession based on title it comes under Article 65 of the Indian Limitation Act under which limitation runs from the time when the defendant No. 1's possession became adverse to the plaintiff. Under the present Act of 1963 in a suit for possession based on title the onus is no longer on the plaintiff to prove that his dispossession took place within the period of limitation as was required under the old Limitation Apt. In a case governed by the Limitation Act of 1963 it is the defendant No. 1 who has to establish that he had been possessing the properties adversely for more than the statutory period as a consequence of which the plaintiff's title has been lost. The period of time that would be required for prescribing title would be 30 years in a suit instituted by the State Government according to Article 112 of the new Limitation Act whereas it would be 60 years under Article 149 of the old Limitation Act. It has been of course argued by the respondent No. 1 in this appeal that prior to the commencement of the new Limitation Act, 1963, the title by adverse possession had already been acquired by the defendant No. 1 and his family with respect to the suit tank and the new Limitation Act would not be applicable in this case. We do not find the necessity to examine as to whether the period of 60 years according to old Limitation Act or 30 years according to the new Limitation Act would be applicable for acquisition of title by adverse possession in this case inasmuch as the case of the defendant No. 1 is that the grandfather of defendant No. 1 and after him his successors have been continuously possessing the suit tank for at least 80 years prior to the suit and their possession from the very inception being not referable to lawful title, must be taken to be adverse.

8. The learned counsel appearing for the appellant has invited our attention to some documents for establishing that the possession of the tank by the grandfather of defendant No. 1 was not adverse inasmuch as he had obtained permission for excavation of the tank in question and the permission was granted without prejudice to the ownership of the State for excavation of the tank. Exts. 1 to 8 relate to the alleged permission said to have been granted by the Darbar administration for excavation of the tank. The plaintiff has placed no document on record to prove that the plots of land in respect of which permission was granted for excavation of the tank as mentioned in Exts. 1 to 8 correspond to the suit tank. The area in respect of which permission was granted is much less than the area now claimed in the suit and from the evidence on record we are unable to find that the permission that was sought for, and granted in those documents (Exts. 1 to 8) relates to the suit tank. The plaintiff has examined P, W. 1 who proved a Panchayatnama (Ext. 9) said to have been executed on 28. 5. 1959. The said document does not mention the plot numbers but his evidence goes to establish that the forefathers of defendant No. 1 had excavated the disputed tank and have been repairing the same from time to time and carrying on pisciculture therein. No other evidence has been adduced on behalf of the defendant No. 1, The evidence as discussed in the impugned judgment, in our opinion, is sufficient to hold that the suit tank was excavated by the grandfather of defendant No. 1 who was and after him his successors have been continuing in possession of the suit tank for a length of time sufficient to prescribe title against the State.

9. It is common case of the parties that the defendant No. 1 from the time of his grandfather has been in possession of the suit tank though the character of possession has been in dispute. The plaintiff had set up a case that the possession of the grandfather of defendant No. 1 was permissive as he had been granted permission during Darbar administration to excavate the tank without prejudice to the right of the State over the land in question. The said plea of the plaintiff has not been proved as discussed in the preceding paragraph. On the other hand, the possession of the grandfather of defendant No. 1 has been held to 'be adverse from the very inception. It, therefore, follows that the possessory right of the grand-father of the defendant No. 1 devolves upon his legal heirs after his death. The defendant No. 1 in his written statement had categorically taken a stand that the suit is not maintainable in the absence of the sons and grandsons of late Mahadev Mahanta (the grandfather of defendant No. 1) who were necessary parties to the, suit. There is evidence on record to show that besides the defendant No. 1 there are others who have succeeded to the properties as heirs after the death of the grandfather of defendant No. 1. Thus, those who succeeded to the suit properties along with defendant No. 1 are necessary parties to the suit in whose absence no effective decree can be passed. Thus, the suit must be held to be bad for non-joinder of necessary parties.

10. In the result, there is no merit in this appeal and the same is liable to be dismissed. In the facts and circumstances of this case, we do not make any order as to the costs of this appeal.

B.K. Behers, J.

I agree.


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