The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.191 of 2002 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Sadi Sarasa -versus- N. Govinda Reddy and another …. …. Appellant Respondents Appeared in this case:- For Appellant For Respondents : : Mr. N.C. Mishra, Advocate None Appeared in this case:- CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 08.01.2024 / date of judgment :16.02.2024 A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment. 2.
Legal Reasoning
The appellant of this 2nd appeal was the sole plaintiff before the trial court in the suit vide T.S. No.06 of 2000 and she was the respondent in the 1st appeal vide T.A. No.05 of 2002. The respondents of this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.06 of 2000 and they were the appellants in the 1st appeal vide T.A. No.05 of 2002. // 2 // The suit of the plaintiff vide T.S. No.06 of 2000 was a suit for permanent injunction simplicitor. 3. The case of the plaintiff (who is the appellant in this 2nd appeal) before the trial court in the suit vide T.S. No.06 of 2000 against the defendants(those are the respondents in this 2nd appeal) was that, the suit properties are Government land. Neither the plaintiff nor the defendants are the owners of the suit properties. The plaintiff is a helpless divorced lady. She (plaintiff) after being divorced from her husband, came to her parents village after super cyclone of the year 1999 from her in-laws house and constructed a house over the suit properties vide Plot No.5268 under Khata No.1396 measuring an area Ac.0.04 decimals and resided thereon. The defendants have no manner of right, title, interest or possession over the suit properties. The suit properties are under the exclusive possession of the plaintiff. They(defendants) are in possession over the adjacent properties of the suit properties. In order to disposes the plaintiff from the suit properties, they(defendants) created disturbances in her peaceful possession and enjoyment. The possession of the plaintiff over the suit properties has been acknowledged by the Government through initiation of an encroachment proceeding against her vide L.E. Case No.10 of 1998 under Sections 4, 6 and 7 of the OPLE Act, 1972 and Rule-3(2) of the OPLE Rules. So, without getting any way, she(plaintiff) approached the civil court by filing the suit vide T.S. No.06 of 2000 against the defendants praying for injuncting the defendants permanently from creating any sort of disturbances in her peaceful possession over the suit properties. 4. Having been noticed from the trial court in T.S. No.06 of 2000, the defendants contested the same by filing their joint written statement after taking their stands therein that, they(defendants) have been using the suit // 3 // properties as road to reach their respective houses. They(defendants) are in possession over some portions of Plot Nos.5264, 5265 and 5267. Plot Nos.5264, 5265 and 5267 are also the Government land like the suit land. The plaintiff was/is not in possession over any portion of suit Plot No.5268. The suit land is the intervening road between Rajadanda and the houses of the defendants. They(defendants) have been using the suit land as their passage to approach the main road, i.e., Rajadanda from their houses on Plot Nos.5265 and 5267. As, they(defendants) have been enjoying and possessing the suit land as their approach road from their respective houses, for which, they(defendants) cannot be injuncted from using the same. Therefore, the suit of the plaintiff is liable to be dismissed against them (defendants) with costs. 5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether six numbers of issues were framed by the trial court in the suit vide T.S. No.06 of 2000 and the said issues are:- I S S U E S 1. Whether the plaintiff is in possession of the suit land by constructing a house over it? 2. Whether the defendants are using the said land as the only approach road to go to the main road and to their respective houses? 3. Whether the suit is under valued? 4. Whether the suit is barred by limitation? 5. 6. Is there any cause of action for the suit? To what relief, if any, the plaintiff is entitled to? // 4 // 6. In order to substantiate the aforesaid relief sought for by the plaintiff in her suit vide T.S. No.06 of 2000 against the defendants, she(plaintiff) examined three witnesses from her side including herself as P.W.1 and relied upon one document, i.e., the certified copy of the order dated 28.04.1998 in L.E. Case No.10 of 1998 vide Ext.1. On the contrary, the defendants examined three witnesses on their behalf including the defendant Nos.1 and 2 as D.Ws.1 and 2 and relied upon series of documents for their side vide Exts.A to K. 7. After conclusion of haring and on perusal of the materials, documents and evidence available in the record, the trial court answered issue nos.1, 2, 3, 4 and 5 in favour of the plaintiff and against the defendants and basing upon the findings and observations made by the trial court in the aforesaid issues, the trial court decreed the suit of the plaintiff vide T.S. No.06 of 2000 on contest against the defendants as per its judgment and decree dated 27.02.2002 and 14.03.2002 respectively and restrained the defendants from interfering into the peaceful possession and enjoyment of the plaintiff over the suit land by assigning the reasons that, though the suit land rests with State, but, in view of the encroachment proceeding initiated against the plaintiff by the Government in respect of the suit properties, the plaintiff is in possession and enjoyment of the suit properties, for which, her possession and enjoyment over the suit properties is to be protected and therefore, the defendants are to be injucted from interfering with the peaceful possession and enjoyment of the plaintiff over the suit properties. 8. On being dissatisfied with the aforesaid judgment and decree dated 27.02.2002 and 14.03.2002 respectively passed by the trial court in T.S. No.06 of 2000 in favour of the plaintiff and against the defendants, they (defendants) challenged the same by preferring the 1st appeal being // 5 // the appellants vide T.A. No.05 of 2002 against the plaintiff by arraying her(plaintiff) as respondent. After hearing from both the sides, the 1st appellate court allowed 9. the 1st appeal vide T.A. No.05 of 2002 of the defendants against the plaintiff as per its judgment and decree dated 15.07.2002 and 29.07.2002 respectively and set aside to the judgment and decree passed by the trial court in T.S. No.06 of 2000 in favour of the plaintiff by assigning the reasons that, when in para no.4 of the deposition of the plaintiff (P.W.1) before the trial court in the suit vide T.S. No.06 of 2000, she (plaintiff) has deposed by answering the questions of the learned counsel for the defendants that, she has entered into possession of the suit properties only 3 to 4 years back, which is not inconformity with her pleadings about her possession to the suit properties since long and when an encroachment proceeding vide L.E. Case No.10 of 1998 in respect of the suit properties as per Ext.1 has already been initiated against the plaintiff projecting her (plaintiff) as an encroacher of the suit properties, i.e., the Government properties and when the defendants are claiming that, they have been using the suit properties as their only passage/road to reach the main road from their respective houses, then, at this juncture, plaintiff has not become able to establish her possession over the suit properties through legally admissible evidence. For which, she (plaintiff) is not entitled for the decree of permanent injunction against the defendants in respect of the suit properties, which are the Government properties. 10. On being aggrieved with the aforesaid judgment and decree passed by the 1st appellate court in T.A. No.05 of 2002 in dismissing the suit of the plaintiff vide T.S. No.06 of 2000, she (plaintiff) challenged // 6 // the same by preferring this 2nd appeal being the appellant against the defendants by arraying them (defendants) as respondents. 11. This 2nd appeal was admitted on formulation of the following substantial questions of law, i.e., :- (i) Whether the lower appellate court is justified in holding that, the plaintiff is not entitled for injunction against the defendant? (ii) Whether the lower appellate court should not have interfered with the judgment and decree passed by the trial court in favour of the appellant(plaintiff) on the principles of law that, a person is in possession over the suit properties even though as a trespasser, others like the defendants shall not be allowed to disturb in her possession, unless the other persons like the defendants prove their prior possession over the same?\ 12. I have already heard from the learned counsel for the appellant(plaintiff) only, as none appeared from the side of the respondents(defendants) to participate in the hearing of the appeal. 13. It is the undisputed case of the parties that, the suit properties are Government properties. The parties of both the sides, i.e., plaintiff as well as defendants are claiming possession and enjoyment of the suit properties. The plaintiff is claiming her possession over the suit properties on the basis of initiation of an encroachment case against her in respect of the suit properties vide L.E. Case No.10 of 1998 as per Ext.1 under OPLE Act, 1972. 14. In paragraph no.4 of the deposition of the plaintiff(P.W.1), she has deposed on oath that, “the suit land was lying vacant and the same was under peaceful possession of her maternal grand-father. Her maternal // 7 // grand-father was possessing the same since 100 years. She (plaintiff) constructed a house on the suit land three years back. Prior to that, the suit land was lying vacant. There is no document to show the physical possession of her maternal grand-father.” 15. The above evidence of the plaintiff is self-contradictory concerning her possession over the suit properties. Because, at one hand, she(plaintiff) has deposed that, she has been possessing the suit properties since time of her maternal grand-father, i.e. since last 100 years, but, to which, she(plaintiff) herself has contradicted by stating that, the suit land was lying vacant and she has been possessing the same by constructing a house thereon since last three years. 16. When, it is the own statements/depositions of the plaintiff as P.W.1 that, the suit land was lying vacant, then, her plea concerning her possession over the same since last 100 years, i.e., since the time of her maternal grand-father is not correct. It is the specific case/plea of the defendants that, the suit properties have been using by them(defendants), as a road to reach in their respective houses and the same is not under the possession of the plaintiff. 17. When, undisputedly an encroachment case vide L.E. Case No.10 of 1998 vide Ext.1 has already been initiated against the plaintiff in respect of the suit properties as an encroacher of the same as per the own statements and document of the plaintiff and when the defendants are claiming that, they (defendants) have been using the suit properties as their passage/road to reach in their respective houses and main road and when no RoR of the suit properties has been filed or proved on behalf of // 8 // the plaintiff to show the present status/kissam of the suit properties and when, the suit properties are the properties of the Government, the user of the same is not confined to the plaintiff only and when it is the settled propositions of law that, no person, like the plaintiff can claim separate/individual possession over the Government properties causing inconvenience to the right of use of the same by others, as, the rights of all are vested on the Government properties for their common use to the same, then at this juncture, no order of injunction can be passed in favour of the plaintiff to perpetuate her claim of illegal possession over the suit properties jeopardizing(defeating) the right of common enjoyment of the same by the public at large including the defendants in this suit at hand. Therefore, the judgment and decree passed by the 1st appellate court in T.A. No.05 of 2002 setting aside the judgment and decree of the trial court passed in T.S. No.06 of 2000 in dismissing that suit vide T.S. No.06 of 2000 of the plaintiff cannot be held as illegal or erroneous. 18. The conclusion drawn above finds support from the ratio of the following decision :- 2020(I) Civil Court Cases 838(P&H) : Bir Barjrangi Akhara vrs. Suresh Nayyar and others (Paras 6 to 8)— Specific Relief Act, 1963—Section 38—Permanent injunction—Public Property—“Plaintiff for injunction against the defendants in respect of public land. Possession of public property by any individual or group of individuals is no possession in the eyes of law and such group of persons cannot claim any right over such public property. sought When entry of plaintiff in suit property is by way of illegal means, plaintiff would be treated to be a rank trespasser, for which, no protection can be granted in favour of plaintiff. Injunction against the defendants (individuals of the locality) rightly declined.” // 9 // 19. As per the discussions and observation made above, when it is held that, the judgment and decree passed by the 1st appellate Court in T.A. No.05 of 2002 are not erroneous, then at this juncture, the question of interfering with the same through this appeal filed by the appellant does not arise. For which there is no merit in this 2nd appeal of the appellant. The same must fail. 20. In the result, the 2nd appeal filed by the appellant(plaintiff) is dismissed on merit, but without cost. The judgment and decree passed by the 1st appellate court in T.A. No.05 of 2002 dismissing the suit of the plaintiff vide T.S. No.06 of 2000 are confirmed. Judge Orissa High Court, Cuttack The 16th of February, 2024/ Jagabandhu, P.A. ( A.C. Behera ) Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: PA Reason: eMudhra.App.Views.PartialControls.SigningModeTab.SigningTabVie wModel Location: OHC, CUTTACK Date: 19-Feb-2024 07:19:57