First Appeal No. 273 of 1989. Case: Kartar Singh (Since dead) after him Gurudeep Kaur & Ors. Vs Steel Authority of India Ltd, Rourkela Steel Plant & Ors.. High Court of Orissa (India)
| Case Number | First Appeal No. 273 of 1989 |
| Counsel | For Appellant: M/s. R.K. Mohanty, G.B. Jena, N. Behuria, D.K. Mohanty & Ors. And For Respondents: Mr. N.K. Sahoo & Ors. |
| Judges | B. K. Nayak, J. |
| Issue | Code of Civil Procedure, 1908 - Rule 27; Orissa Development Authorities Act, 1982 - Section 3 |
| Citation | AIR 2012 Ori 145, 2012 (113) CLT 1079 |
| Judgement Date | January 25, 2012 |
| Court | High Court of Orissa (India) |
Judgment:
B. K. Nayak, J.
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Judgment and decree dated respectively 31.08.1989 and 06.09.1986 passed by the Learned Sub-Ordinate judge, Rourkela in Title Suit No. 6 of 1984 dismissing the Plaintiffs' suit have been assailed in this First Appeal. The Plaintiff-Appellant filed the aforesaid Titled Suit for declaration of his title over the land and for permanent injunction restraining Defendant Nos. 1 and 2 from proceeding with cases instituted under the Public Premises (Eviction of Unauthorized Occupants) Act for eviction of the Plaintiff and for restraining Defendant No. 3 from demolishing Plaintiffs garage standing on the suit land.
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The Plaintiffs case is that the suit land measuring Ac. 0.77 decimals appertaining to Hal Plot Nos. 606(P), 607, 6089(P), 633(P) and 640(P) under Hal Khata No. 12 situated in Rourkela Town (corresponding to Sabik Plot Nos. 541 and 534 under Sabik Khata Nos. 98 and 93 of Mohulpali Mouza) belonged to late Dharam Das Toppo. After the death of Dharam Das Toppo his wife, Binko Toppo became the owner of the suit land and for legal necessity she sold Ac. 0.28 decimals and Ac. 0.29 decimals respectively on 29.01.1954 and 17.02.1954 for consideration of Rs. 85 and Rs. 90 appertaining to plot No. 540 and granted receipts in token of receipt of such consideration and delivered possession of the same to the Plaintiff. She also put the Plaintiff in possession of additional Ac. 0.20 decimals of land as there was no aid for demarcation. Accordingly, the Plaintiff got possession of Ac. 0.77 decimals of land in to in 1954 and since then is in enjoyment of the same by putting up his motor garage, residential house, kitchen garden, etc. He also got electricity connection to the said premises. In the year 1962 the Rourkela NAC. (Defendant No. 3) issued a notice to him for demolition of the construction over the suit land treating the same as unauthorized and after the Plaintiff filed his show cause no further action was taken by Defendant No. 3 Defendant No. 1-Steel Authority of India Ltd and its Assistant Manager (Defendant No. 2) filed a petition before the Estate officer, Rourkela for the fist time on 21.05.1981 under the Public Premises (Eviction of Unauthorized Occupants) Act for eviction of the Plaintiff from Ac. 0.27 decimals of the suit land, which was registered as P.P. Case No. 5049/81. Again Defendant Nos. 1 and 2 instituted another P.P. Case No. 5032/84 for eviction of the Plaintiff in respect of the land measuring 1010 square feet. The Plaintiffs claim is that he has acquired title over Ac. 0.57 decimals of the suit land by way of purchase and Ac. 0.20 decimals of the suit land by way of adverse possession. Alternatively, it is pleaded by the Plaintiff that he has perfected his right, title and interest over the entire suit land measuring Ac. 0.77 decimals, being in open, continuous and uninterrupted possession for a period of more than 12 years to the knowledge of everybody. It is stated that the suit land being not a public premises, the provisions of the Public Premisses (Eviction of Unauthorized Occupants) Act (in short the 'P.P. Act') are not applicable and, therefore, the proceedings under the Act against the Plaintiff instituted by Defendant Nos. 1 and 2 are not maintainable. Defendant No. 4 was impleaded as a Party as he was claiming title to the excess and of 20 decimals.
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Defendant Nos. 1 and 2 filed a joint written statement pleading that Dharama Das, the husband of Binko Toppo and his brothers, namely, Johan Christian, Bijaya Christian and Dayalu Christian were the joint owners of the suit land appertaining to Sabik Plot Nos. 534 and 540 under Khata No. 98 and in the R.O.R. suit land was recorded in their names jointly and as such Binko Toppo was not sole owner of Sabik Plot No. 540 and had ho right to alienate any portion of the same. Besides, he being a tribal (Adivasi) lady has no right to inherit or succeed to the property of her husband and she being a tribal could not alienate the land to a non-tribal person (Plaintiff). It was also denied that Binko Toppo sold the suit land to the Plaintiff and delivered possession to him. It is further pleaded by Defendant Nos. 1 and 2 that by virtue of notification issued on 22.02.1954 the suit land along with other lands situated in village- Mahulpali were acquired by the State for the purpose of installing Steel Plant at Rourkela by Hindustan Steel Ltd. and the State delivered possession of the same to Defendant No. 1 on 17.07.1955. For acquisition of the land, the recorded owners have been paid compensation, that is to say, the recorded owners of-the Christian family have received compensation for acquisition of Sabik Plot Nos. 534 and 540 and the family of Defendant No. 4 received compensation for Plot No. 541. Because of the acquisition of the land, Binko Toppo could neither alienate nor deliver possession of the suit land to the Plaintiff. Alternatively, it is pleaded that assuming that the Plaintiff acquired title by sale, it stood extinguished by virtue of notification of acquisition issued by the State. The Plaintiffs claim of possession over the suit land since 1954 has also been denied. It is stated that after finding subsequent encroachments by the Plaintiff, the NAC. (Defendant No. 3) rightly issued notice to the Plaintiff for demolition of unauthorized construction and it was not true that the NAC closed the case without further action. On the other hand, orders have been passed on 23.05.1979 and 03.05.1985 for demolition. Defendant Nos. 1 and 2 have started eviction proceedings under the P.P. Act in the years 1981 and 1984 after finding encroachments during those years for different portions of the land. The Plaintiff, however, in he meanwhile managed to obtain record-of-rights in respect of Ac. 0.17 decimals of land, unconnected with the suit land, which was subsequently turned down by the Commissioner of Land Settlement, Orissa in Revision Petition No. 698/80. Against such revisional order, the Plaintiff preferred O.J.C. No. 1983 of 1986 and challenged the initiation of P.P. Cases by the Defendants, 1 and 2 by filing OJC Nos. 1370 of 1985 and 1160 of 1985, which are subjudice. It is also denied that the Plaintiff has acquired right, title and interest by way of adverse possession. It is also pleaded that the suit is bad for non-joinder of the State Government as a party and that the suit is grossly undervalued and the Civil Court has no jurisdiction to entertain the suit in view of the provisions of the P.P. Act, 1971.
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Defendant Nos. 3 and 4 were set ex-parte.
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On the pleadings of the parties, the Trial Court framed ten issues and on consideration of the evidence dismissed the suit with the findings that the so called sale of Ac. 0.57 decimals of suit land in two transactions are invalid and they do not confer any title on the Plaintiff and that the State is the owner because of acquisition of the land and the State having not been impleaded as a party, the suit suffers from the defect of non-joinder of necessary party, and that the Plaintiff has not acquired title to the suit land by adverse possession and that his possession is not for 30 years and not uninterrupted.
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