The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.364 of 1998 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Dharanidhar Jena and others Dharanidhar Behera and others -versus- …. …. Appellants Respondents Appeared in this case:- For Appellants : Mr. D.P. Mohanty, Advocate For Respondents : Mr. B. Das, Advocate appearing on behalf of Mr. N.C. Pati, Advocate CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 06.12.2024 / date of judgment :18.12.2024 A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment. 2. The appellants in this 2nd appeal were the plaintiffs before the trial court in the suit vide T.S. No.16 of 1989 and appellants before the 1st appellate court in the 1st appeal vide T.A. No.04 of 1998. // 2 // 3.
Legal Reasoning
The respondents in this 2nd appeal were the defendants before the trial court in the suit vide T.S. No.16 of 1989 and respondents before the 1st appellate court in the 1st appeal vide T.A. No.04 of 1998. 4. The suit of the plaintiffs (appellants in this 2nd appeal) against the defendants(respondents in this 2nd appeal) before the trial court vide T.S. No.16 of 1989 was a suit for declaration as well as permanent and mandatory injunction. 5. The suit land is Ac.0.04 decimals out of Ac.0.624 decimals of Hal Plot No.1002 under Hal Khata No.114 in Mouza Tolankabereni under Bhuban Tahasil in the district of Dhenkanal. According to the plaintiffs, the suit properties along with other properties were originally belonged to one Nidhi Behera. The said Nidhi Behera died leaving behind his three sons, i.e., Darsani Behera, Baishnaba Behera and Agadi Behera. After the death of Nidhi Behera, the suit properties along with other properties left by him devolved upon his above three sons, i.e., Darsani Behera, Baishnaba Behera and Agadi Behera. Page 2 of 15 // 3 // The suit properties correspond to parts of Sabik Plot Nos.140, 141 and 152. Sabik Plot Nos.140, 141 and 152 as per Sabik Settlement Map of the year 1923-1924 were contiguous plots. The area of Sabik Plot No.140 was Ac.0.60 decimals, the area of Sabik Plot No.141 was Ac.0.48 decimals and the area of Sabik Plot No.152 was Ac.0.19 decimals, the total area of Sabik Plot Nos.140, 141 and 152 under Sabik Khata No.62 as per Sabik RoR of the year 1923- 1924 in the name of Nidhi Behera were Ac.1.27 decimals. When, three sons of Nidhi Behera, i.e., Darsani Behera, Baishnaba Behera and Agadi Behera were possessing Sabik Plot Nos.140, 141 and 152 along with their other properties jointly being the successors of their father Nidhi Behera, they(Darsani, Baishnaba and Agadi) divided their all joint properties including Sabik Plot Nos.140, 141 and 152 among them. In such division/partition, the suit properties, those are the parts of Sabik Plot Nos.140, 141 and 152 along with some other properties had fallen in the share of Darsani Behera and Baishnaba Behera. Darsani Behera is the father of the defendant no.1. The said Darsani Behera and Baishnaba Behera sold total Ac.0.52 decimals of land from Sabik Plot Nos.140, 141 and 152 to the plaintiffs through registered sale deed dated Page 3 of 15 // 4 // 26.06.1993. Though the plaintiffs purchased Ac.0.52 decimals in total from Sabik Plot Nos.140, 141 and 152 through sale deed dated 26.06.1993 from Darsani Behera and Baishnaba Behera, but, since the said date of their purchase, i.e., since 26.06.1993, they (plaintiffs) actually possessed Ac.0.67 decimals of land of Sabik Plot Nos.140, 141 and 152 in total Ac.0.67 decimals including their purchased Ac.0.52 decimals to the knowledge of their vendors, i.e., Darsani Behea and Baishnaba Behera and others. As such, they(plaintiffs) are in continuous possession over Ac.0.67 decimals of land from Sabik Plot Nos.140, 141 and 152 since 26.06.1993. Accordingly, they(plaintiffs) have been possessing excess Ac.0.15 decimals of land then their purchased Ac.0.52 decimals of land from Sabik Plot Nos.140, 141 and 152. For which, they(plaintiffs) have acquired their title through adverse possession over that excess Ac.0.15 decimals of land over Sabik Plot Nos.140, 141 and 152 and they (plaintiffs) have also constructed their residential houses on the same. But, the Hal RoR was published in the name of the plaintiffs erroneously only for an area of Ac.0.52 decimals instead of Ac.0.67 decimals, even though, they(plaintiffs) are possessing Ac.0.67 decimals of land in total from Sabik Plot Nos.140,141 and 152 since 26.06.1993. The Hal RoR of their said Ac.0.15 decimals of land, to which, they (plaintiffs) have been possessing since the date of their purchase Ac.0.52 Page 4 of 15 // 5 // decimals of land, i.e., since 26.06.1993 were erroneously recorded in the name of the defendant no.1 along with his other properties under Hal Khata No.114 Plot No.1002. The suit properties, i.e., Ac.0.04 decimals are the part of Hal suit Plot No.1002 out of Ac.0.624 decimals. After publication of the said Hal RoR of the suit Plot No.1002 under Hal Khata No.114 in the name of defendant no.1, the defendant no.1 forcibly entered into the suit properties and threatened the plaintiffs for demolition of their compound wall from the suit properties, for which, they (plaintiffs) approached the civil court by filing the suit praying for declaration of their right, title, interest and possession over the suit properties and also for injuncting the defendant no.1 permanently from interfering into their possession over the suit properties and to direct the defendant no.1 through mandatory injunction for demolition of constructions made by him (defendant no.1) over the suit properties. 5. Having been noticed from the trial court in the suit vide T.S. No.16 of 1989, the only defendant no.1 contested the suit of the plaintiffs by filing his written statement, but, other defendants were set ex parte. As per the pleadings of the defendant no.1, the suit of the plaintiffs for declaration, permanent as well as mandatory injunction in respect of the suit properties is not maintainable under law due to lack of proper Page 5 of 15 // 6 // identity of the suit properties. The defendant no.1 in his written statement denied all the averments made by the plaintiffs in their plaint. It was the specific case of the defendant no.1 was that, the plaintiffs had purchased Ac.0.52 decimals of land from Sabik Plot Nos.140, 141 and 152 through registered sale deed dated 26.06.1993 from Darsani Behera and Baishnaba Behera. The plaintiffs have never possessed any property in excess of their purchased Ac.0.52 decimals from Sabik Plot Nos.140, 141 and 152. The plaintiffs were/are not in possession of any land in excess of their purchased Ac.0.52 decimals of land. For which, the question of any title of the plaintiffs through adverse possession over the suit properties does not arise. When the plaintiffs have prayed for declaration, permanent as well as mandatory injunction in respect of the Ac.0.04 decimals of land out of Ac.0.624 decimals of land from Plot No.1002 without indicating the exact location or identity of the suit properties, then, at this juncture, the suit of the plaintiffs for declaration, permanent as well as mandatory injunction is not maintainable under law. Therefore, the suit of the plaintiffs is liable to be dismissed with costs. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether eight numbers of issues were framed by Page 6 of 15 // 7 // the trial court in the suit vide T.S. No.16 of 1989 including an issue vide issue no.(iii) that :- (iii) Is the suit of the plaintiffs hit by Order-7, Rule-3 of the C.P.C.? 7. In order to substantiate the aforesaid relief(s) sought for by the plaintiffs against the defendant no.1, the plaintiffs examined four witnesses from their side including the plaintiff no.2(b) as P.W.1 and relied upon series of documents on their behalf vide Exts.1 to 9. On the contrary, in order to defeat/nullify the suit of the plaintiffs, the contesting defendant no.1, examined two witnesses on his behalf including him as D.W.1 and relied upon several documents from his side vide Exts.A to E. 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues including vital issue no.(iii) against the plaintiffs and in favour of the defendant no.1 and basing upon the findings and observations made by the trial court in the issues against the plaintiffs and in favour of the defendant no.1, the trial court dismissed the suit of the plaintiffs on contest against the defendant no.1 and ex parte against rest other defendants as per its judgment and decree on dated 17.01.1997 and 04.02.1997 respectively assigning the reasons that, the suit of the Page 7 of 15 // 8 // plaintiffs in respect of the suit properties, i.e., Ac.0.04 decimals out Ac.0.624 decimals of Hal Plot No.1002 for the reliefs, i.e., declaration, permanent as well as mandatory injunction is not maintainable under law being hit and barred under Order-7, Rule-3 of the C.P.C., 1908 due to lack of proper identity of the suit properties, because, the suit properties are the part/portion/fraction of Plot No.1002, i.e.. Ac.0.04 decimals out of Ac.624 decimals. So, due to lack of proper identity of the suit properties, no effective decree can be passed in respect of the same. Therefore, the suit of the plaintiffs as framed is defective under law due to lack of proper identity of the suit properties. 9. On being dissatisfied with the aforesaid judgment and decree of dismissal of the suit of the plaintiffs vide T.S. No.16 of 1989 passed by the trial court, they(plaintiffs) challenged the same by preferring 1st appeal vide T.A. No.04 of 1998 being the appellants against the defendants arraying them(defendants) as respondents taking several ground in their appeal memo. After hearing, the 1st appellate court dismissed that 1st appeal vide T.A. No.04 of 1998 of the appellants(plaintiffs) concurring/accepting the findings and observations made by the trial court against them (plaintiffs) and in favour of the defendants as per its judgment and decree dated 29.08.1998 and 19.09.1998 respectively. Page 8 of 15 // 9 // 10. On being aggrieved with the aforesaid judgment and decree of the dismissal of the 1st appeal vide T.A. No.04 of 1998 of the plaintiffs, they(plaintiffs) challenged the same by preferring this 2nd appeal being the appellants against the defendants 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 learned lower appellate court is correct in coming to a conclusion that, the existing description of the suit property in plaint Schedule-„A‟ and the corresponding sketch map attached to the plaint is not sufficient for identification of the suit land and the same is vague? (ii) Whether the learned lower appellate court is correct in coming to a conclusion that, on the existing description of the suit property given in Schedule-„A‟ of the plaint and the corresponding sketch map attached to it, no executable decree can be passed on it?” 12. I have already heard from the learned counsel for the appellants (plaintiffs) and learned counsel for the contesting respondent no.1(defendant no.1). 13. As, the above both the formulated substantial questions of law are on same and one point concerning the identity of the suit properties, then, both the substantial questions of law are taken up together analogously for their discussions hereunder:- Page 9 of 15 // 10 // The suit of the plaintiffs(appellants) vide T.S. No.16 of 1989 is a suit for declaration, permanent as well as mandatory injunction. The suit properties described in Schedule-„A‟ of the plaint is Ac.0.040 decimals out of Ac.0.624 decimals from Hal Plot No.1002 under Hal Khata No.114 shown in a rough hand sketch map in the plaint. Undisputedly, the suit properties, i.e., Ac.0.04 decimals are the part/fraction/portion of a big area, of the suit plot vide plot no.1002, because, the total area of suit Plot is Ac.0.624 decimals. No boundary description of the suit properties has been given by the plaintiffs in their plaint. Though, a rough sketch map has been given in the plaint by the plaintiffs for the identification of the suit properties, the same has not been drawn to the scale according to village map. 14. It is the settled propositions of law that, when a suit is filed in respect of a portion/fraction of a plot like this suit at hand, in that case, proper/definite particulars of the suit properties are necessary to be reflected by the plaintiff or plaintiffs in the plaint for its proper identification. It is not correct to say that, a portion of a plot can always be identified through the boundaries thereof. Because, from a given Page 10 of 15 // 11 // boundary lines making different angles can be drawn, in which, event, the situation of the suit properties may still remain uncertain. Therefore, it is necessary that, a portion of a suit plot, to which, the plaintiff or plaintiffs claim, should be described with certainty, so that, an effective executable decree can be passed in respect of the same. Therefore, it is necessary that, a portion/fraction/part of a plot, to which, the plaintiff or plaintiffs claim should be described with certainty/specificity. Because, if the suit properties are not described with certainty/specificity, in that case, even if, the court passes a decree on the same in favour of the plaintiff or plaintiffs, the same cannot be enforceable/executable under law against the defendant or defendants, as its exact location is not identificable from the description of the suit properties given in the plaint. On this aspect, the propositions of law has been clarified in the ratio of the following decisions:- In a case between Sau. Godawaribai Purushottam Bhawaskar vrs. Sitaram Bhagwan Paithane : reported in 2020(3) Civil Court Cases Page-705(Bombay), it has been held that, Purpose of Order-7, Rule-3 of the C.P.C. is to ensure that, there is description of the suit property sufficient to identify the same, which is with intent and purpose that, in a case, a decree is passed, it ought to be an executable decree and does not remain a mere paper decree. Page 11 of 15 // 12 // In a case between Bandhu Das and Anr. vrs. Uttam Charan Pattanaik : reported in 2006(3) CCC-331(Odisha), it has been held by the Hon‟ble Courts that, measurement of the disputed land in relation to settlement map had not been given nor has the sketch map drawn to scale. Boundaries of disputed land were not mentioned, for which, decree was not executable and the suit was incompetent for want of proper description and sufficient identification. So, the suit was dismissed. In Lucy Narona vrs. Raghunath Jew Bije : reported in 74(1992) CLT-463, it has been clarified that, it is necessary that, the portion of the plot, which plaintiffs claim should be described with certainty. Because, even if, the court passes the decree in favour of the plaintiffs, the same cannot be executed against the defendants, as its identification is not possible from the description of the suit property in the plaint. So, no effective decree can be passed in respect of the suit properties, as the description of which was given in the plaint is not sufficient for its identification. Suit was dismissed. In a case between State of Orissa and others vrs. Dillip Kumar Sahoo and others : reported in 2017(I) CLR-840— Where the suit is in respect of a portion of a plot, further particulars are necessary for its identification and when there is no sufficient material to identify the suit properties, in that case, the suit of the plaintiff cannot succeed.(Para-17) In a case between Mary Pushpam vrs. Telvi Curusumary & Ors. : reported in 2024(4) Civ. CC-522(SC), In a case between Mary Pushpam vrs. Telvi Curusumary and Ors. : 2024(1) C.C.C-3(S.C.)—In a suit for possession, the suit properties are required to be descried with accuracy of all details of measurement and boundaries in conformity to Order-7, Rule-3 of the C.P.C., 1908, but, in absence of the same, suit would liable to be dismissed on the ground of lack of its identity (Para-23) In a case between (Sri) Prasanna Kumar Sadangi and Others vrs. Government of Orissa, represented by the District Magistrate-cum-Collector, Balasore and others : reported in 2021(2) CLR-1107—In a suit for declaration and possession, it is duty of the plaintiff to describe the suit property in the plaint by supplying the map indicating the exact location of the suit land, absence of which, the suit is to be dismissed. Because, no court shall pass a decree, which shall ultimately be non-enforceable or non-executable, for that reason that, if a decree is passed in respect of an unidentifiable property, the Page 12 of 15 // 13 // said decree may remain on paper in making entire exercise futile. In a case between Narayan Singh vrs. Madan Singh : reported in 2024(1) Civil CC-59(Uttarakhand)—Relief of permanent injunction can be granted, only if the property is clearly identifiable, so that, there remains no dispute after grant of relief, i.e., permanent injunction. 15. The object of Order-7, Rule-3 of the C.P.C., 1908 is to ensure that, decree involving immovable property can be executed, only when, there is proper identity of the suit properties. For which, once, the court is satisfied that, the description of the suit properties is not sufficient for its proper identification, in that case, the court can dismiss the suit only on that ground. Therefore, it is the duty of the court to first identify the suit properties, then, to pass the decree. The above propositions of law has also been clarified by the Hon‟ble Courts and the Apex Court in the ratio of the following decisions:- In a case between K. Krishnaswamy vrs. S Rajendra and Ors. : reported in 2023(1) CCC-376(Kerala)—It is the duty of the court first to identify the suit property, then to pass a decree on the same in favour of a person, who is entitled for the same. : reported In a case between Dwaraka Prasad Agarwalla vrs. Nilkamal in 2015(3) Civil Law Times- Bezbarua 185(Guwahati)—The object of Order-7, Rule-3 of the CPC is to ensure that, decree involving immovable property can only be executed, when, there is proper identification of suit property.
Legal Reasoning
In a case between (Sri) Jagannath Jena and Others vrs. State of Orissa and another : reported in 2018(1) CLR-882(Para- Page 13 of 15 // 14 // 10)—When no effective decree can be passed, the suit cannot be decreed. In a case between Shyam Sundar Pradhan vrs. Adikanda Pradhan & others : reported in 2015(1) CLR 137(Para-12)— Once the Court is satisfied that, the description of the suit property is not sufficient for proper identification of the suit land, the suit can be dismissed only on that ground. In a case between John Sylem vrs. Chanthan Muthvi Pillai : reported in 2004(I) Civil Court Case Page-144(Madras) that, in a suit for declaration, unless the suit property with reference to which declaration is sought is clearly identified, in that case, the plaintiff is not entitled to a decree. When the plaintiffs have prayed for the relief, i.e., declaration, permanent as well as mandatory injunction in respect of Ac.0.04 decimals out Ac.0.624 decimals from Plot No.1002 without indicating the boundaries thereof and without giving any sketch map drawn to the scale in reference to the village map, then at this juncture, by applying the principles of law enunciated in the ratio of the aforesaid decisions, it is held that, the suit properties are not properly identifiable for passing an effective executable decree in respect of the same. For which in view of the propositions of law enunciated in the ratio of the aforesaid decisions, the suit of the plaintiffs is hit and barred under Order-7, Rule-3 of the C.P.C. due to lack of proper identification of the suit properties. 16. As per the discussions and observations made above, when it is held accepting fully to concurrent findings of the trial court and 1st appellant court that, the suit of the plaintiffs is not maintainable under law due to lack of proper identification of the suit properties, then at this Page 14 of 15 // 15 // juncture, the question of interfering with the said judgments and decrees passed by the trial court and 1st appellate court through this 2nd appeal filed by the appellants does not arise. 17. Therefore, there is no merit in the appeal of the appellants. The same must fail. 18. In result, this 2nd appeal filed by the appellants is dismissed on contest against the respondents, but, without cost. The judgments and decrees passed by the trial court and 1st appellate in T.S. No.16 of 1989 and T.A. No.04 of 1998 respectively are confirmed. Judge Orissa High Court, Cuttack The 18th of December, 2024/ Jagabandhu, P.A. ( A.C. Behera ) Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Personal Assistant Reason: Authentication Location: OHC, CUTTACK Date: 19-Dec-2024 17:31:03 Page 15 of 15