Decided on March 04,2021

Kuntala Samantasinghar Appellant


D.DASH,J. - (1.) The unsuccessful plaintiffs have filed this appeal under section 100 of the Code of Civil Procedure (for short, 'the Code') in assailing the judgment and decree passed by the learned 3rd Additional District Judge, Puri in RFA No.44/24 of 2013/2011 confirming the judgment and decree passed by the learned Civil Judge (Junior Division) in T.S. No.187 of 1999.
(2.) For the sake of convenience and clarity; the parties hereinafter have been referred to in the same rank as assigned to them in the original suit, namely, the appellants as the plaintiff whereas the respondents as the defendants.
(3.) The plaintiffs case, in short, is that they are the legal heirs and successors of one Duryodhan Samantasinghar, who died on 01.05.1985. Said Duryodhan was serving under the Odisha State Electricity Board at Puri. It is stated that he, in the year, 1940 had entered upon the suit land which was then lying fallow and standing recorded under Anabadi status. In or around the year 1948-49 said Duryodhan raised structures over the suit land and constructing residential house resided there with this family members. It is the further case of the plaintiffs that during the settlement operation of the year 1965, finding Duryodhan to be in possession over the suit land, at every stage, orders were passed for recording of the land in his name at its owner. However, at the time of final publication of the Record of Right, Duryodhan's name stood deleted. Being aggrieved by the same, Duryodhan had filed an appeal as provided under Orissa Survey Settlement Act. Said attempt of Dyryodhan however proved futile and the move for recording of the suit land in his name on the basis of possession failed. When the matter stood thus, an encroachment case bearing No.15/70-70 was initiated against said Duryodhan for his illegal and unauthorized occupation of the property in suit. In that proceeding, he was imposed with the penalty and demand was levied against him. He filed an appeal and having lost, in that forum, had approached this Court for invoking of the jurisdiction under Article 226 of the Constitution. This Court, in disposing that writ application, directed Duryodhan to approach the Competent Authority of the State seeking settlement of the suit land in his favour provided he stands so entitled within the four corner of the said settlement provision as contained in section7 of the Orissa Prevention of Land Encroachment Act. Abiding the above, Duryodhan had approached the Competent Authority praying for grant of lease of the land in suit. That move stood rejected. Thereafter when an attempt was made for removal of the structures standing over the suit land and eviction of the plaintiffs who continued to remain in possession of the land and occupation of the house after Duryodhan; they once again had approached this Court by initiating another proceeding under Article 226 of the Constitution which stood numbered as OJC No.7458 of 1998. It is stated that the concerned officials of the State, however, demolished asbestos roofed rooms standing over the suit land in violation of the restraint order. So, a contempt proceeding had also been initiated. Ultimately, it was said therein that eviction of the plaintiffs from the suit land can only be made following due procedure of law. This suit thereafter has came to be filed. The projected basis for the reliefs claimed by the plaintiffs as to declaration of right, title, interest and possession over the suit land is that of acquisition of right of occupancy over the suit land through long standing possession and construction of the residential house thereon and staying therein since the time of Duryodhan, the ancestor of the plaintiffs and the continuation as such at least till the year 1985 as also thereby acquisition of title by adverse possession. The defendants while traversing the plain averments besides resisting the suit on some technical grounds, such as non-service of notice under section 80 CPC, non-existence of any cause of action etc. have mainly contested the suit by denying the claim of the plaintiffs as to acquisition of right of occupancy and the right, title and interest over the suit land as said to have been acquired by virtue of adverse possession. According to them, the plaintiffs are mere trespassers for which the, encroachment proceedings had been initiated and therein, the penalty being imposed for such illegal and unauthorized act, the same has been duly paid. It is stated that pursuant to the order passed in the encroachment proceeding, the predecessor-in-interest of the plaintiffs, i.e., Duryodhan had been physically evicted from the suit land. Placing the history touching upon the land, it is stated that this land under suit was a piece of Government Khasmal land and it had been leased out to one Renuka Bala Dutta in the year 1940 for a period of 30 years commencing from 15.6.1940 vide order passed in Lease Case No.33,39 and 40. But for the breach of the terms and conditions by said leassee, the lease stood cancelled and thereafter it had been transferred in favour of the Supply and Transport Department of the State way back in the year 1946. It is further stated that the plaintiffs' prayer for settlement of the land in suit has been rightly rejected as they do not come within the category of 'landless persons' as per the provisions contained in the Act, Rules as well as the Guidelines issued by the Government in that regard from time to time. It is also stated that their income is also above the prescribed limit so as to be eligible to tender the application for such settlement of land and as to their entitlement of the benefit thereunder. Furthermore, it is said that since the suit land stands in an important place of township of Puri and as the plaintiffs are mere trespassers; their claim for settlement being devoid of merit has been rightly negated. The defendants have thus prayed to non-suit the Plaintiffs. ;

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