Ori HC | Adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and wilful neglect but also on account of possessor’s positive intent to dispossess-one

Orissa High Court: D. Dash J. dismissed the second appeal being devoid of merits.

The Appellant filed the instant appeal under Section 100 of Code of Civil Procedure (for short, ‘the Code’) assailing judgment and decree dated 19-10-2019 and 06-11-2019 respectively passed by the II^nd Additional District Judge, Balasore. Taking up the crucial issues as to the right, title, interest of the Plaintiff as claimed to have been acquired by way of adverse possession; the legality of the M.S. record of right in respect of the suit land and the nature of the land; the decisions have been rendered against the Plaintiff. The Plaintiff having been non-suited had approached the lower Appellate Court in filing the First Appeal under section 96 of the Code which came to be dismissed. The lower Appellate Court has affirmed the findings by assigning the reasons of its own and upon appreciation of the evidence on record at its level. Hence, this appeal.

Counsel for the appellant (plaintiff) submitted that the Courts below did commit the error by not considering the Yadast report as also the note of possession in respect of the suit land in favour of the Plaintiff in Major Settlement Record. He also submitted that when the very possession of the suit land by the Plaintiff on the strength of Hata Patta stands adverse to the true owner and said state of affair having continued for upward of the prescribed in law, the Plaintiff ought to have been held to have perfected his title over the suit land by adverse possession.

The court observed that the classical requirements of adverse possession are: nec vi, nec calm, nec precario. 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. Adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessor’s positive intent to dispossess-one.. In the case at hand, fine in the Encroachment Proceeding having been paid by the Plaintiff, the same is clearly an act of recognition of the title of the State and thus the question of denial of the title as up till that time does never arise.

The Court further observed that the process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person even though is having no right over the property entered into possession of the property of someone else and continues to be in possession setting up title in himself and adversely to the title of the true owner they only a case of acquisition of title by adverse possession can sustain, provided it is for the required length period and the nature of possession is open, peaceful and without interruption and as such established by leading clear, cogent and acceptable

evidence. The action of the Plaintiff in paying the fine in the Encroachment Proceeding of the year 1993 is nothing but an expression in clear term as to lack of hostile animus in possessing the same.

The Court thus held “The facts and circumstances emanating from the evidence on record being tested in the touch stone of the above settled principles of law, the end result of the suit receiving seal of approval in the First Appeal, are found to be well in order.”

[Sri Raj Kishore Panda v. State of Odisha, RSA No.57 of 2020, decided on 26-03-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Appearances:

For appellants- Mr. S.P. Mishra, Ms. S. Mishra, G.N. Parida, A. Agarwal, B. Jena, S. Swaroop, N. Sharma, M. Mohanty and E. Agarwal,

For the respondent- None