The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.96 of 1990 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) The Executive Engineer(Irrigation), Bhanjanagar and others -versus- Smt. Tarini Patro and another …. …. Appellants Respondents Appeared in this case:- For Appellants For Respondents : : Mr. Gyanalok Mohanty, learned Standing Counsel None Appeared in this case:- CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 04.02.2025 / date of judgment : 11.03.2025 A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment. 2.
Legal Reasoning
The appellants in this 2nd appeal were the defendant nos.1 to 3 before the trial court in the suit vide T.S. No.105 of 1985 and respondent nos.1 to 3 before the 1st appellate court in the 1st appeal vide T.A. No.08 of 1987. 3. The respondent no.2 in this 2nd appeal was the defendant no.4 before the trial court in the suit vide T.S. No.105 of 1985 and respondent no.4 before the 1st appellate court in the 1st appeal vide T.A. No.08 of 1987. The respondent no.1 in this 2nd appeal was the sole plaintiff before the trial court in the suit vide T.S. No.105 of 1985 and appellant before the 1st appellate court in the 1st appeal vide T.A. No.08 of 1987. The suit of the plaintiff(respondent no.1 in this 2nd appeal) before the trial court vide T.S. No.105 of 1985 against the defendants(appellants and respondent no.2 in this 2nd appeal) was a suit for permanent injunction simpliciter. 4. The suit land is Plot No.330(227/369) to the extent of A. 0.080 decimals and Plot No.329(227/370) to the extent of A.0.122 decimals under Khata No.46 in total A. 0.202 decimals in mouza G. Dhougam under Aska Sub-registrar in the district of Ganjam. According to the plaintiff, she is the owner of the suit Plot Nos.329 and 330, upon which, her residential house, latrine, bathroom etc. have been constructed. The suit plots stand recorded in her name. Surprisingly on dated 26.09.1985, the defendant nos.1 and 2 along with their staffs up- rooted the vegetable plants from some portions of suit plots, i.e., from the Page 2 of 12 suit land and made primary preparation for digging a canal on the same, which is inside her homestead at the back of her house, to which, she (plaintiff) protested. So, the defendant nos.1 and 2 could not proceed with their works for digging the canal in the suit land. Then, in order to institute a suit for injunction against the defendant nos.1 to 3, the plaintiff issued statutory notices under Section 80 of the CPC, 1908 to the defendants nos.1 to 3 and after statutory period, she(plaintiff) filed the suit vide T.S. No.105 of 1985 against the defendants praying for injuncting the defendants permanently from entering into the suit land and from interfering with the peaceful possession and enjoyment of the plaintiff in the suit land. 5. Having been noticed from the trial court in the suit vide T.S. No.105 of 1985, the defendants contested the same by filing their written statement jointly taking their stands that, the suit of the plaintiff for injunction against the defendants is not maintainable. According to the defendants, the suit properties have already been lawfully acquired by the State through lawful land acquisition proceeding for public purpose in order to pass a canal through the same. For such acquisition of the suit properties, as per law, notices were served on the plaintiff and the lawful compensation amount thereof has been kept under deposit in the Government Treasury on 22.11.1984, as in spite of Page 3 of 12 the notices to the plaintiff for receiving the said compensation amount, the plaintiff did not turn up to receive the same. When, the suit properties have already been acquired lawfully by the State and the possession thereof has already been taken by the State on 17.10.1984 as per law and when, the plaintiff has no possession over the suit properties and when, due to acquisition of the suit properties, the suit properties vested with the Government, for which, the suit for permanent injuction simpliciter filed by the plaintiff against the defendants in respect of the suit properties is not maintainable under law. The same is liable to be dismissed against the defendants. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether four numbers of issues were framed by the trial court and the said issues are:- I S S U E S i. Whether the suit is maintainable? ii. Whether the plaintiff has cause of action to file the suit? iii. Whether the suit land was acquired under Land Acquisition Act for the purpose of construction of canal? iv. To what relief, if any, the plaintiff is entitled to? 7. In order to establish the aforesaid relief, i.e., permanent injunction sought for by the plaintiff against the defendants, she (plaintiff) examined Page 4 of 12 one witness on her behalf, i.e., to her son as P.W.1 and relied upon the documents vide Exts.1 to 5. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendants examined one witness on their behalf as D.W.1 and exhibited several documents from their side vide Exts.A to J. 8. After hearing from both the sides and on perusal of the materials, documents and evidence available in the record, the trial court dismissed the suit of the plaintiff vide T.S. No.105 of 1985 on contest against the defendants as per its judgment and decree dated 25.04.1987 and 05.05.1987 respectively assigning the reasons that, the suit of the plaintiff in respect of the suit properties for permanent injunction against the defendants is not maintainable (entertainable) under law. Because, due to acquisition of the suit properties, as per Land Acquisition Act, 1894, the suit properties vested in the Government being free from all encumbrances, in which, as per law, the plaintiff has no title and possession. For which, the suit of the plaintiff, for permanent injunction against the defendants in respect of the suit properties is not maintainable under law. 9. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.105 of 1985 passed by the learned trial court, she(plaintiff) challenged the same by Page 5 of 12 preferring the 1st appeal vide T.A. No.08 of 1987 being the appellant against the defendants arraying the defendants as respondents. 10. After hearing from both the sides, the 1st appellate court allowed that 1st appeal vide T.A. No.08 of 1987 of the plaintiff and set aside the judgment and decree of the dismissal of the suit passed by the trial court in T.S. No.105 of 1985 as per its judgment and decree dated 22.12.1989 and 04.01.1990 respectively assigning the reasons that, the defendants have not been able to prove proper acquisition of the suit properties with full compliance of the mandatory provisions contemplated in the Land Acquisition Act, 1894, because, the defendants have failed to establish through legally admissible evidence about the acquisition of the suit properties to the knowledge of its owner, i.e., plaintiff. For which, the plaintiff has every cause of action to file suit against the defendants praying for injuncting them(defendants) permanently from coming over the suit properties. 11. On being aggrieved with the aforesaid judgment and decree dated 22.12.1989 and 04.01.1990 respectively passed by the 1st appellate court in T.A. No.08 of 1987 in favour of the plaintiff and against the defendants, they(defendant nos.1 to 3) challenged the same by preferring this 2nd appeal being the appellants against the plaintiff arraying the Page 6 of 12 plaintiff as respondent no.1 and also arraying the defendant no.4 as respondent no.2. 13. This 2nd appeal was admitted on formulation of the following substantial questions of law, i.e.:- (i) Whether, as per the findings and observations made by the Trial Court and 1st Appellate Court in their respective judgments and decrees, the suit of the plaintiff(respondent in this 2nd appeal) for injunction simpliciter in respect of the suit properties was maintainable under law? (ii) Whether, the plaintiff (respondent in this 2nd appeal) was entitled for decree of permanent injunction? 14. I have already heard only from the learned Standing Counsel for the appellants(defendant nos.1 to 3), as none appeared from the side of the respondent no.1(plaintiff) for participating in the hearing of this 2nd appeal. 15. When both the above formulated substantial questions of law are inter-linked having ample nexus with each other according to the pleadings of the parties, the findings and observations made by the trial court and 1st appellate court in their respective judgments and decrees, then, at this juncture, it is felt proper to take both the substantial questions of law analogously for their discussion hereunder:- Page 7 of 12 The plaintiff has not offered herself by coming to the witness box during the trial of the suit to be cross-examined by the defendants and there is no plausible/reasonable explanation on behalf of the plaintiff about the cause of her withholding from coming to the witness box to depose about her case. On this aspect, the propositions of law has already been clarified by the Apex Court in the ratio of the following decisions:- In cases between Vidhyadhar vrs. Mankikrao and (i) another : reported in AIR 1999 SC-1441, Rattan Dev vrs. Pasam Devi : reported in (2002) 7 SCC-441 and Iswar Bhai C Patel alias Bachu Bhai Patel vrs. Harihar Behera and another : reported in AIR 1999 S.C.-1341 that, “where, a party to the suit does not appear into the witness box and states his/her own case on oath and does not offer himself/herself to be cross-examined by the other side, a presumption would arise that, the case set up by him/her is not correct.” 16. When in this suit/appeal at hand, the plaintiff has not come to the witness box during trial of the suit to state about her case and when, she(plaintiff) has not offered herself to be cross-examined by the appellants(defendants), then, at this juncture, in view of the principles of law enunciated by the Apex Court in the ratio of the aforesaid decisions, a presumption can be drawn against her(plaintiff) relating to her case. 17. Nowhere in the plaint of the plaintiff, it has been pleaded/stated by her(plaintiff) questioning/challenging the notifications for acquisition of the suit properties as well as the procedures of acquisition of the suit Page 8 of 12 properties making averments in that regard specifically in her plaint as per the requirements under law. As such, there is no foundation/basis in the pleadings of the plaintiff in challenging the notifications for acquisition of the suit properties as well as the procedures of such acquisition. The undisputed documents vide Exts.A to G and J are going to show that, the suit properties have already been acquired by the State and possession thereof has already been taken by the State on the basis of the acquisition and the awarded compensation amount for such acquisition of the suit properties has already been deposited in the Government Treasury as per law only due to non-receiving the same by the plaintiff. 18. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of following decisions:- In a case between May George vrs. Special Tahasildar (i) and others : reported in (2010) 13 SCC-98—When, once land is vested with the State through acquisition, it cannot be divested even if there is any irregularity in the acquisition proceeding. In a case between C. Padma and others vrs. Deputy (ii) Secretary to the Government of T.N. and others : reported in (1997) 2 SCC-627—After vesting of the land in the State pursuant to the acquisition, the land owners have no right to challenge the notification for acquisition. In a case between Girish Ratilal(Halani) Thakkar and (iii) another vrs. State of Gujarat and others : reported in 2024(1) Page 9 of 12 Civil Law Judgments-560 (Gujarat)—After vesting of the land in the State, the owners of the land have no right to challenge the notification, when, it is forthcoming from the court about the procedure the specific compliance of prescribed under the Act for acquisition. In a case between Indore Development Authority vrs. (iv) Manoharlal and others : reported in (2020) 8 SCC-129—As per Sections 16 and 17 of the Land Acquisition Act, 1894, the acquired property becomes the property of the Government without any limitation or condition either as to title or possession. Once land vests in the State free from all encumbrances, it cannot be divested. If landowner whose property has been so acquired retains possession thereof, or re- enters upon the acquired land in some way, he does so only in the capacity of a trespasser. In a case between Sri G.V. Reddy vrs. Ministry of (v) Communication Employees Co-operative Housing Society Ltd. : reported in 2020(1) CCC-463(Karnakata)—Civil court has no jurisdiction to examine acquisition proceedings by necessary implication. When subject matter, i.e., property was acquired under Land Acquisition Act, which is special and comprehensive Act, remedy available to plaintiff even for the relief of injunction is not coming under Section 9 and order VII Rule 11 of the CPC or under Article 226 of the Constitution of India for the maintainability of the suit. In cases between State of Bihar vrs. Dhirendra Kumar (vi) and others at (Para-3) : reported in (1995) 4 SCC-229, Commissioner, Bangalore Development Authority and another vrs. Brijesh Reddy and another (Para-18) : reported in (2013) 3 SCC-66 and Sonsai Bhikhuram vrs. Executive Engineer and others : reported in 2017(Supp.) Civil Court Cases-294(Chhatisgarh)—Jurisdiction of the Civil Court is barred to challenge the notifications under Sections 4 and 6 of the L.A. Act, 1894 and no declaration or permanent injunction can be granted and the Civil Court is devoid of jurisdiction and only right available for the person is to approach High Court or Supreme Court under Articles 226 and 136 respectively. 19. Here, in this suit/appeal at hand, when, after acquisition of the suit properties by the State as per the undisputed public documents vide Exts.A to G and J, the plaintiff has filed suit for injunction simpliciter Page 10 of 12 against the defendants indirectly challenging the notifications issued under Sections 4 and 6 of the L.A. Act, 1894 for acquisition of the suit properties without necessary pleadings to challenge the same as discussed above, then at this juncture, in view of the principles of law enunciated by the Hon’ble Courts and Apex Court in the ratio of the above decisions, the suit of the plaintiff for injunction simpliciter against the defendants in respect of the suit properties is not maintainable under law, for the reasons that, due to the acquisition of the suit properties through proper notifications under L.A. Act, 1894, the suit properties vested in the Government/State free from all encumbrances, for which, the plaintiff has no right or interest in the acquired suit properties other than her right to receive the deposited compensation amount for such acquisition. So, the judgment and decree passed by the trial court in dismissing the suit of the plaintiff was not incorrect under law. For which, the 1st appellate court should not have reversed the judgment and decree passed by the trial court. 20. Therefore, there is justification under law for making interference with the judgment and decree passed by the 1st appellate court in T.A. No.08 of 1987 through this 2nd appeal filed by the appellants(defendant Page 11 of 12 nos.1 to 3). As such, there is merit in the appeal of the appellants(defendant nos.1 to 3). The same must succeed. 21. In result, this 2nd appeal filed by the appellants is allowed on contest, but, without cost. The judgment and decree passed by the 1st appellate court in T.A. No.08 of 1987 is set aside and the judgment and decree passed by the trial court in T.S. No.105 of 1985 in dismissing the suit of the plaintiff(respondent no.1 in this 2nd appeal) on contest against the defendants(appellants) is confirmed. ( A.C. Behera ) Judge Orissa High Court, Cuttack The 11th of March, 2025/ Jagabandhu, P.A. Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 18-Mar-2025 14:50:08 Page 12 of 12