R.K. Das, J.
1. This appeal has been filed by the State of Orissa against the reversing judgment of the Additional District Judge of Ganjam in a suit for declaration of title, confirmation of possession and damages.
2. The plaintiff purchased the suit lands from different persons by registered sale-deeds, Exts. 2, 2/a, 2/b and 2/c dated 104-1938, 24-3-1941, 15-3-1938 and 9-9-1946 respectively, covering different items of the suit-property as mentioned in the plaint-schedule. It is the case of the plaintiff that his predecessor-in-interest and after them the plaintiff himself has been in possession of the suit-lands for more than one hundred years in their own right and have thus acquired title by adverse possession against the State. There were previously thatched houses on the suit-sites which the plaintiff demolished with a view to construct pucca houses and 'aid foundation therefor over the entire area covering all the items. Thereafter the Berhampur Municipality issued' notice alleging encroachment by the plaintiff, but the proceedings were dropped. The Revenue Department also started similar proceedings and levied penalty. The plaintiffs case is that though he insisted upon the Department to take measurement of the suit lands to find out if in fact any encroachment had been made. They did notcomply and he paid the 'penalty in order to avoid furthertrouble. The authorities, however started proceedings forencroachment under the Madras Land Encroachment Act,1905 and passed orders for his eviction from the suit lands. Hence the plaintiff filed the present suit claiming that there is in fact no encroachment and in any case the defendant's right, if any, has been lost by adverse possession of the plaintiff as stated above. The allegedencroachment for which the plaintiff filed the suit is with regard to about 0.02 decimals of land in extent.
3. The plea of the defendant was that the notice under Section 80 of the C. P. C. is not valid in the eye of law, as it was not received by the Collector, but by his steno. That the suit land is a village Parambok belonging to the Government, and the plaintiff was in unauthorised occupation of the same and the proceedings for eviction were taken against him under the provisions, of the Madras Land Encroachment Act and he has been evicted in due course, and the plaintiff has not acquired any title by adverse possession,
4. The trial Court held that the notice under Section 80 was a valid one, but the plaintiff had not acquired any title by adverse possession. He thus dismissed the plaintiff's suit.
5. The appellate Court however, reversed the findings of the trial court and decreed the plaintiffs suit holding that the plaintiff had proved title by adverse possession, though he dismissed his claim for damages. It is against this decision of the lower appellate Court the State has come up in appeal.
6. it was contended by the learned Advocate General appearing on behalf of the State that the notice under Section 80 was not a valid one and Wat the evidence necessary to make out a case of hostile title are completely absent in this case and that the land being Parambok land, the Dossession of the plaintiff was a pure encroachment.
7. With regard to the notice, the trial Court foundagainst the appellant holding that a proper and validnotice was duly given before filing of the suit. Thispoint, however, was not challenged before the lower appellate Court, nor has it been taken as ,a ground of appeal in this Court. Nothing has been shown in evidence that the Steno of the District Collector was not authorised to receive the notice. It has been proved that the notice Ext A was duly received under acknowledgment,Ext. 1/b and nothing has been shown that this was not sufficient for the purpose of Section 80 of the Civil Procedure Code. This contention therefore, must be rejected.
8. With regard to the other contentions raised on behalf of the appellant, they seem to be not without any force. The disputed land admittedly has been recorded as village site Paramboke belonging to the Government, in the Settlement records (Diaglote) of the year 1907-1908 and in the Adangal prepared by the village Karanam the plaintiff has been shown to be in unauthorised occupation of the suit lands. As already stated, both the Municipality and the Revenue Department also started encroachment proceedings though at some stage the same were dropped. It is also admitted by the plaintiff that he paid penalty on account of the unauthorised occupation, and that eviction proceedings were also taken, though according to the plaintiff requisite notice was not served upon him. These are the circumstances which weigh against the case of that plaintiff. As already stated, the learned appellate Court differed from the findings of the trial Court and decreed the plaintiff's suit holding that the plaintiff having been in possession for a very long time, the onus is on the State to prove its title and possession within 60 years preceding the suit. In my opinion, this is not the correct approach. That the Government was the owner of the suit-land cannot be disputed. The plaintiff admitted the said position and also paid the penalty imposed for his encroachment The provision of the Land Encroachment Act makes it clear that all lands wherever situated shall be the property of the Government except as otherwise specified. That mere long continued possession for any length of time, unless such possession clearly amounts to adverse possession for a period of 60 years, will not be sufficient in a suit against the Government, has been well established in a number of decisions, (ILR 39 Mad 617 : (AIR 1916 PC 21), Secretary of State v. Chellikani Rama Rao). A Division Bench of this Court in a case reported in A.S.N. Murty v. State of Orissa, 28 Cut LT 601, also held the same view. In view of this position, the learned appellate Court was not correct in holding that mere long possession is enough to make out a title by adverse possession in favour of the plaintiff and the onus shifts to the State to establish that it had title and possession within sixty years from the date of the suit.
9. Mr. Pal, learned counsel for the respondent, relied upon a decision reported in R. Abhayya v. State of Andhra Pradesh, AIR 1960 Andh-Pra 134 in support of his contention that possession of the plaintiff for a sufficiently long period will enable a presumption of possession for sixty years in his favour. But on a close examination, it would appear that in fact such a proposition was an obiter in that case as it was found as a fact that the plaintiff had established possession for at least sixty years. The learned Judge himself expressed that the question was only of an academic importance in view of the finding he had arrived at. From that decision, It would appear that the payment of penalty to the State is an act derogatory to the acquisition of title by adverse possession by the plaintiff. That case is clearly distinguishable and was also noticed in the aforesaid decision of this Court in 28 Cut LT 601.
10. It is the settled position of law that the onus to establish adverse possession is on the person who claims the same so as to displace the lawful title of the real owner. In view of this position, it must be held that the learned appellate Court wrongly shifted the onus to the State for proving its title and possession within sixty years of the suit.
11. It is equally well settled that to make out a case of adverse possession, the possession must be adequate in continuity, in publicity and in extent to show that it is a possession adverse to the real owner. If the plaintiff would have established that he, through his predecessors-in-interest, had been in possession for sixty years of the suit land, adverse to the State, the right, of the State could be held to have been extinguished and the plaintiff to succeed in his claim (see Secretary of State v. Debendralal Khan, AIR 1934 PC 23). Here, however, no such case has been made out and all that has been made but is that the plaintiff was in possession of the suit lands for some years. The learned appellate Court after discussing the evidence found:
'It is therefore manifest that the plaintiff and his predecessors-in interest have been in possession of the Suit-site, for a long time and there is no proof of any act of ownership by the Government within sixty years preceding the suit.................. The plaintiff having proved long possession and his predecessors title over the suit land, the onus shifted to the Government to establish its title and possession within sixty years preceding the suit. But the Government have failed to prove the same.'
As stated above, mere long possession is not enough to make out a case of adverse possession. The plaintiff should have established by clear evidence that he and before him his predecessors were in hostile possession of the suit land for a period of 60 years so as to extinguish the title of the State. On this question though the trial Court after an elaborate discussion of the evidence recorded a finding against the plaintiff, the appellate Court did not give any such finding.
12. The learned Advocate General contended that one of the main issues regarding the possession of the plaintiff for the statutory period of sixty years not having been answered by the learned appellate Court, this Court should examine the evidence and come to a finding on this point. That such a course is permissible in law, cannot be doubted in view of the provisions of Section 103 of the Code of Civil Procedure. In fact issue No. 1
'Whether the plaintiff or his predecessors have title to and enjoyment of the suit-sits within the statutory period?'
is the main issue in the case. To arrive at a finding on that issue, it is necessary to examine the evidence adduced on behalf of the plaintiff and I would accordingly summarise the evidence as follows:
13. P. W. No. 1 aged 45 years has stated that he has been seeing the disputed land for the last twenty years. About 20 years back, it was in possession of the vendors of the plff, and since about 12 to 13 years it is in the possession of the plaintiff. P.W. 2 though aged ninety years has stated that he has been seeing the disputed site since about thirty to forty years. There were some thatched houses belonging to the Bouris. Since about ten to 12 years, he saw the plaintiff laying foundations on the disputed land. P. W. 3 aged 81 years has stated that in the year 1915 he saw some thatched houses on the disputed land belonging to Bouris meaning the predecessors of the plaintiff and he found the plaintiff in possession for over thirty years. P. W. 4 aged sixty years saw the disputed land to be in the possession of the Bouris for a long time since about his tenth year and that the plaintiff was in possession for the last ren to twelve years. P. VV. 5 aged 60 years though claimed to have seen the thatched houses belonging to Bouris standing on the disputed land, he could not give any idea about the extent of this land. On the other hand he admitted that he did not remember the disputed land. Though it is not the case of the plaintiff that he himself was in possession by a period of thirty years and in fact his sale deeds were of a much later date, this witness could not say that the plaintiff was in possession and laid the foundation about thirty years back. To the same effect the evidence of P. W.' 6 and P. W. 7 except that P. W. 6 said that he saw the plaintiff laying the foundation on the disputed site about 14 or 15 years back. P. W. 8 is the plaintiff himself. He was unable to say as to who was in possession prior to the purchase from the Bouris. Thus, it is clear that the evidence adduced on behalf of the plaintiff does not support the case of the plaintiff's possession for over the statutory period so as to make it adverse against the government.
14. On behalf of the defence it has been established that the suit-site stands on survey No. 285/2-A and is a part of village Parambok land. The encroachment of the plaintiff being admitted in the yepr 1947, penalty was imposed on the plaintiff which was realised from him in the year 1955-57, though the ground-rent was collected from him in the years 1950, 1951 and 1952.
15. Thus the oral evidence adduced on behalf ofthe plaintiff goes to prove the ownership of the Statein respect of the suit-site, rather than the claim of theplaintiff thereto.
It must accordingly be held that the plaintiff has failed to prove the hostile possession for a period of sixty years. In view of this finding and the position of law as discussed above, the plaintiff's suit is bound to fail, and is dismissed.
In the result, the appeal is allowed with costs.