The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.10 of 1999 In the matter of appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 22.09.1997 and 30.09.1997 respectively passed by the learned Civil Judge, Senior Division, Dharamgarh in Title Appeal No.4 of 1994 setting aside the judgment and decree dated 08.04.1994 and 18.04.1994 respectively passed by the learned Civil Judge, Junior Division, Dharamgarh in Title Suit No.172/154 of 1988/1990. ---- The Collector, Kalahandi & Another …. Appellants -versus- Prahallad Aghria & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Miss.Samapika Mishra, Addl. Standing Counsel For Respondents - Mr.J.R. Dash, Advocate (For. R.1 to 4, 5(a), 5(c), 5(d), 6, 8(a), 8(b), 9 and 10. CORAM: MR. JUSTICE D.DASH Date of Hearing : 07.09.2022 : Date of Judgment:26.09.2022 D.Dash,J. The Appellants, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment and decree dated 22.09.1997 and 30.09.1997 respectively passed by the learned Civil Judge, Senior Division, Dharamgarh in Title Appeal No.4 of 1994. SA No.10 of 1999 Page 1 of 9 {{ 2 }} By the same, the Appeal filed by the Respondents, as the
Legal Reasoning
unsuccessful Plaintiffs under section 96 of the Code has been allowed. The suit filed by them has been decreed declaring their right over the water and carrying out pisciculture over the tank and the Appellants (Defendants) have been permanently restrained from interfering in the said rights of the Respondents (Plaintiffs) in any manner. The First Appellate Court has set aside the judgment and decree dated 08.04.1994 and 18.04.1994 respectively passed by the learned Civil Judge, Junior Division, Dharamgarh in Title Suit No.172/154 of 1988/1990 in non- suiting the Respondents (Plaintiffs). 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court. 3. The Plaintiffs’ case is that one Gopinath Aghria was their common ancestor. He had excavated the suit tank locally known as “KHALIA KATA” and a bandh locally known as “PILE BANDH” over his rayati land at Village-Chichiya for irrigation and fishery. The excavation is said to have been made eighty years before the institution of the suit. It is stated that as per the then prevailing practice during Darbar Administration, the area was recorded in the record of right of the year 1922-23 as Jalchar. Despite the above, Gopinath and his brothers continued to possess the said “KHALIA KATA” and “PILE BANDH” and as such enjoyed the said tank and bandh by using its water for irrigation and having pisciculture. It is stated that said right has been recognized by the Settlement Authorities in the record of right of the current settlement. SA No.10 of 1999 Page 2 of 9 {{ 3 }} After the death of Gopinath and Bhujabal, his successors like Akhila and his sons, who are the Plaintiffs, remained in possession of the same and maintained the suit tank and bandh carrying pisciculture over there and using the water from the said tank without any interruption. It is also stated that they have made improvement of the same. Their claim is that they acquired the right of easement over it by using the said tank and bandh as such from the time immemorial. It is their case that the Defendants have never possessed the suit tank and bandh and maintained it at any point of time. In July, 1988, when the Defendant No.2 attempted to lease out the suit tank for pisciculture, the same was objected to and then it was known by the Plaintiffs that the suit tank and bandh have been transferred by the Defendants 1 and 2. So, the suit came to be filed. 4. The Defendants, in their written statement, submitted that the suit tank and bandh had been excavated during Darbar Administration over the land of the State and accordingly the record of right published in the year 1922-23, the said area has been recorded in the name of State under Holding No.6. So, it is said to be the exclusive property of the State coming to be vested with it after the merger. The possession of the suit tank and bandh and its enjoyment of the rights of using water and carrying pisciculture over there by the Plaintiffs as well as their ancestors have been denied. It is further stated that there has been due transfer of the suit tank and bandh by the State in favour of the Defendant No.2 (Grama Panchayat) and that the Defendant No.2 is maintaining it all through. 5. On the above rival pleadings, the Trial Court framed in total eight issues. Taking up the crucial issue, i.e., issue no.1 with regard to the SA No.10 of 1999 Page 3 of 9 {{ 4 }} claim of the Plaintiffs that their ancestor Gopinath had excavated the suit tank and bandh over his rayati land and was carrying out pisciculture activities and using its water, upon examination of the evidence and their evaluation, the Trial Court returned the answer in the negative. Coming to answer issue nos.2 and 3 with regard to the right of the Plaintiffs that they are said to have been exercising for all these period and thus have acquired the right of those rights, the Trial Court’s has negated the claim of the Plaintiffs in that regard. With all these findings, the suit filed by the Plaintiffs has been dismissed by the Trial Court. The Plaintiffs’ suit thus being dismissed by the Trial Court and they having been non-suited, in the Appeal, they have been successful in getting the decree. The First Appellate Court has passed the following order:- “The judgment dated 8.4.1994 passed by the learned Civil Judge (Junior Division), Dharamgarh dismissing the suit in T.s. 172/154 of 1988-90 is hereby set aside and the suit is hereby decreed in terms of the prayer of the Plaintiffs- appellants to the effect that their right to the water and fish of the suit tank is hereby declared and that the defendant- respondents are hereby permanently from interfering with their said right in any manner whatsoever.” restrained 6. The First Appellate Court has held the evidence to be sufficient to conclude that Gopinath, who is the ancestor of the Plaintiffs had excavated the suit tank before 1922-23. It has next answered that the evidence on record are sufficient to hold that the Plaintiffs have been in continuous possession of the suit tank and bandh since long and accordingly they have perfected their right over the property by virtue of their long use. In concluding paragraphs of the judgment, the First Appellate Court has held as under:- SA No.10 of 1999 Page 4 of 9 {{ 5 }} “The Plaintiffs have claimed for the relief of declaration not of their title but of their right only to the water and the fish of the suit tank besides permanent injunction against the defendants. In the proved facts and the circumstances read with my foregoing findings the plaintiffs have established their stand and hence there should be no difficulty at all to say so in favour of the plaintiffs without any hesitation particularly when the defendants have utterly failed to show the contrary. Accordingly, I am unable to support the view taken by the learned trial court and hold in the facts and the circumstances their entitlement to the both the releifs.” the plaintiffs have proved t hat 7. The Appeal has been admitted on 07.12.2017 to answer the following substantial questions of law:- “i. Whether the finding of the learned lower appellate court that the plaintiffs have perfected title by way of adverse possession is perverse, when the ROR has been published in the name of the State and the suit schedule land has been transferred to the Chichiya Grama Panchayat?; and ii. Whether the learned lower appellate court is justified in declaring the title of the plaintiffs over the suit land on the basis of the adverse possession in the absence of the pleading and proof?” 8. Miss.S.Mishra, learned counsel for the State submitted that the First Appellate Court, without proper discussion of the evidence on record, has unceremoniously disturbed the findings of the Trial Court. She further submitted that when it is the specific case of the Plaintiffs that Gopinath had excavated the suit tank and bandh over his own Rayati land, the First Appellate Court has not found the same in their favour that the excavation had been made over the Rayati land of Gopinath. She submitted that the First Appellate Court even without recording any finding in favour of the Plaintiffs that the suit tank and bandh had been excavated over their Rayati land by placing strong SA No.10 of 1999 Page 5 of 9 {{ 6 }} reliance upon a document, which has not been proved in accordance with law and simply marked as ‘X’ for identification, has totally gone wrong in recording the finding that the Plaintiffs have been in continuous possession of the suit tank and bandh and have been exercising the right of using water and carrying pisciculture activity over there. 9. Learned counsel for the Respondents submitted all in favour of the findings recorded by the First Appellate Court. According to him, the First Appellate Court, on a detail discussion of the evidence on record and by relying upon the document marked ‘X’, which provide full support to the oral evidence, has rightly returned the finding in favour of the Plaintiffs in finally decreeing their suit and accordingly granting the relief as prayed for. 10. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint, written statement. The evidence both oral and documentary have also been perused. 11. The Plaintiffs’ case, as laid, in the plaint is that their ancestor Gopinath had excavated the suit tank and bandh over his Rayati land, which is denied by the Defendants. In the record of right of the year 1922-23, which has been admitted in evidence and marked Ext.1, the land stood recorded in the name of the State as Jalachar under Holding No.6. The Plaintiffs, while pleading that the suit tank and bandh have been excavated by their ancestor Gopinath over his Rayati land, have not even stated the khata number and plot number of the said land. They have also not proved the record of right relating to the land in showing that the same was then standing in the name of Gopinath. No such other Page 6 of 9 SA No.10 of 1999 {{ 7 }} document, in support of said excavation of the suit tank and bandh by Gopinath, has been proved. When it is stated by the Plaintiffs that during Darbar Administration, such was the practice that those excavated tanks and bandhs over the Rayati land by the land holders were being recorded in the name of the State; no such other document in support of such excavation has been proved nor any other case as to that has been shown. In that view of the matter, when the Plaintiffs have failed to establish the fact by leading clear, cogent and acceptable evidence that Gopinath had excavated the suit tank and bandh over his Rayati land, the Trial Court is found to have rightly drawn adverse inference on the case of the Plaintiffs as regards the excavation of the tank and bandh even on the land where it now stand. In the absence of any document being proved from the side of the Plaintiffs that Gopinath by spending his own funds excavated the suit tank and bandh and when no such acceptable oral evidence has been led on that score, the Trial Court is found to have rightly discarded the document marked ‘X’ in the direction of establishment of the case as laid by the Plaintiffs. This document is nomenclatured as the improvement list (Unati Sadhan List) and it is a photocopy. The Plaintiffs have not proved the original of the said document nor have given any explanation as to its loss nor have taken any step to call for the original or the copy of the same from any other quarter. The basis of this document has not been proved. Nothing is said regarding the Authority preparing said document. It is not a document of title. Therefore, this Court finds that the reliance placed by the First Appellate Court on this document marked ‘X’, which has no evidentiary value is totally misconceived. SA No.10 of 1999 Page 7 of 9 {{ 8 }} The Plaintiffs having merely proved certain document showing purchase of the spal (Gunda Janla), Fry (Janla), Fingerling (Angulika Janla) and Yearling (Barsikia Munda Janla) from the year 1972 onwards, those have no bearing with their case of carrying out pisciculture activity over the suit land for all these years as they claim and that apart, those documents cannot be said to having any nexus with the suit tank and bandh in support of their claim. In such state of affairs in the evidence, merely finding some fault with the Defendants that they have not proved the document regarding transfer of the suit tank and bandh in favour of Defendant No.2, the First Appellate Court is found to have committed grave error in presuming the case/claim of continuous possession of the suit tank and bandh by the Plaintiffs in saying that they have been exercising the right of using the water and carrying out pisciculture activity over there for a long period. The First Appellate Court, in doing so, ignored the position even mere user of the water from the tank or bandh owned by the State by the Plaintiffs for any length of time, as it may, is not enough to grant them a decree declaring that they have the right over the water and fish in the tank and bandh in permanently injuncting the rightful owner, i.e., the State and its Authorities in any manner. The aforesaid discussion and reason thus provide answer to the substantial questions of law in negating the claim of the Plaintiffs over the suit tank and bandh as to the exercise of their right, as has been decreed by the First Appellate Court. The suit filed by the Plaintiffs is hereby dismissed. 12.
Decision
In the result, the Appeal stands allowed. The judgment and decree passed by the First Appellate Court are hereby set aside and those SA No.10 of 1999 Page 8 of 9 {{ 9 }} passed by the Trial Court are restored. There shall, however, be no order as to cost. (D. Dash), Judge. Basu SA No.10 of 1999 Page 9 of 9