LAWS(ORI)-2019-3-21

BANSIDHAR NAIK Vs. STATE OF ORISSA AND ANOTHER

Decided On March 07, 2019
Bansidhar Naik Appellant
V/S
State Of Orissa And Another Respondents

JUDGEMENT

(1.) Plaintiff is the appellant against a confirming judgment in a suit for declaration of title, the orders passed in encroachment cases are invalid, illegal and permanent injunction.

(2.) The case of the plaintiff is that he is in peaceful, uninterrupted and continuous possession of the suit land from the time of his father. The Tahasildar, Talcher, defendant no.2 initiated Encroachment Case No.17 of 1985-86 against him on the ground that he has encroached upon Ac.0.7 dec. of land appertaining to hal plot no.390/2909 and directed to stop the construction of the house. Defendant no.2 has no jurisdiction to initiate encroachment proceeding in respect of the suit land, since the suit land situates within municipal area. He is in possession of the land for forty years. In the settlement record of right, the note of possession of his father has been reflected. He assails the order in Encroachment Revision Case No.11 of 1987. On 23.9.1994 the revisional authority remanded the matter to defendant no.2 to dispose of the case. He has not encroached upon the Government land. But then the defendant no.1 passed the order of eviction on 21.10.1995. He filed Encroachment Appeal No.2 of 1996. The same having been dismissed, he filed Encroachment Revision No.8 of 1998. The revision met the same fate. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

(3.) Defendant no.2 filed written statement denying the assertions made in the plaint. Case of the defendants is that the plaintiff is not in possession of the suit land. He has forcibly occupied the Government land before the final publication of R.O.R. in the year 1985-86. Defendant no.2 initiated Encroachment Case no.11 of 1985 against the plaintiff on the report of the R.I., Ghantapada. When the plaintiff constructed rooms over the suit land, defendant no.2 issued notice under Section 8 of the Orissa Prevention of Land Encroachment Act ('O.P.L.E.Act') to him to stop the construction. Defendant no.2 has jurisdiction to initiate proceeding under the O.P.L.E.Act. The R.O.R. neither creates title nor extinguishes title. The plaintiff has not perfected title by way of adverse possession. The plaintiff is having Ac.2.81 dec. of agricultural land, out of which Ac.0.11 dec. is homestead land. He is not a homestead less or land less person.