The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.375 of 2005 Sri Bimbadhar Mishra (Dead) by LRs …. Appellants Mr. S.S. Rao, Senior Advocate -Versus- Balabhadra Sarangi (Dead) by LRs …. Respondents Mr. Goutam Mukherji, Senior Advocate CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:04.12.2023 1. Instant appeal under Section 100 of the Civil Procedure Code, 1908 is at the behest of the appellants assailing the correctness, legality and judicial property of the impugned judgment in R.F.A. No.10 of 2004 promulgated by the learned Additional District Judge, Nayagarh, whereby, the decision of the learned Civil Judge (Junior Division), Nayagarh in Title Suit No.25 of 1995 was confirmed. 2. The original appellant instituted the suit in Title Suit No.25 of 1995 against the defendant for permanent injunction and other relief. The original respondent contested the suit by filing WS and denied the claim of the plaintiffs. Considering the pleadings of the parties, learned Civil Judge (Junior Division), Nayagarh framed as many as six issues. With the pleadings on record, report of a Survey Knowing Commissioner and evidence adduced by the parties, the learned Civil Judge (Junior Division), Nayagarh dismissed the suit. The right, title and interest over the suit schedule land claimed by the original appellant was rejected RSA No.375 of 2005 Page 1 of 8
Legal Reasoning
Sri Bimbadhar Mishra (Dead) by LRs Vrs. Balabhadra Sarangi (Dead) by LRs challenging which the appeal was filed. The learned Additional District Judge, Nayagarh while disposing of R.F.A. No.10 of 2004 agreed with the findings and conclusion rendered in Title Suit No.25 of 1995. Being aggrieved of, the plaintiff filed the present appeal on various grounds besides contending that the evidence of the Survey Knowing Commissioner examined as P.W.2 was not duly considered before discarding the report submitted by him marked as Ext.4, the fact which failed to be taken cognizance of by the learned Lower Appellate Court. 3. The appeal stands admitted on the following substantial question of law: (i) Whether the courts below in the present suit for permanent injunction filed by the appellant as plaintiff, in view of the dispute between the parties as to if suit land is a part of Plot Nos.1525 or 1526, were not under the legal obligation to decide the question of the plaintiff’s title over the entire of Plot No.1525 when the defendant has no claim over any portion of the said plot? 4. Heard Mr. Rao, learned Senior Advocate appearing for the appellants and Mr. Mukherji, learned Senior Advocate for the respondents. 5. Mr. Rao, learned Senior Advocate appearing for the appellants submits that possession of the plaintiff and not the title of the property could be a consideration as against the admitted position that there is a continuous wall of the defendant which demarcates Plot No.1526 and any such construction beyond the said plot to be unacceptable. It is further submitted that for the purpose of determination of the dispute, on the one hand, when defendant did not deny the construction of wall and on the other RSA No.375 of 2005 Page 2 of 8 Sri Bimbadhar Mishra (Dead) by LRs Vrs. Balabhadra Sarangi (Dead) by LRs hand, such claim is over the land of his own, burden of proof was heavy on him to establish that the schedule land situate between both the plots is a part of Plot No.1526, which he failed to prove and establish. In so far as the impugned judgment is concerned, Mr. Rao, learned Senior Advocate submits that the learned Lower Appellate Court did not delve into all the issues rather travelled beyond the framing of suit and was miserably unsuccessful to appreciate the evidence on record with a conclusion that the plaintiff did not succeed in proving the title vis-à-vis the schedule land. According to Mr. Rao, the learned courts below proceeded on the premise that the title of the plaintiff is in respect of Ac.0.02 decimal only, whereas, the possession is over Ac.0.02 decimal as per RoR and assuming it to be correct, a duty was cast upon to find out from which side of the purchased plot, the land has been possessed by the plaintiff. Rao, learned Senior Advocate referred to the following decisions, such as, Rame Gowda (Dead) by LRs Vrs. M. Varadappa Naidu (Dead) by LRs and Another (2004) 1 SCC 769; Somnath Burman Vrs. Dr. S.P. Raju and Another 1969 (3) SCC 129; Gadadhar Sahu Vrs. Karsanbasta Patel and Others ILR 1963 Cuttack 482; E. Mangulu and Others Vrs. Paddili Sriramlu 1974 (1) CWR 568; Panchabati Ramachandra Vrs. Satyabhama Devi and Others AIR 1971 Ori 135; Batakrushna Naik Vrs. Khageswar Kunda and Others 1972 (2) CWR 1998; and finally, Debendranath Nandi Vrs. Natha Bhuiyan AIR 1973 Ori 240. It is contended that whether the schedule land is a part and parcel of one plot or the other in possession of the competing parties, while rejecting the report of the Survey Knowing Commissioner, the court of 1st instance was under obligation to go for a fresh demarcation. 6. On the contrary, Mr. Mukherji, learned Senior Advocate for the respondent submits that the learned Lower Appellate Court RSA No.375 of 2005 Page 3 of 8 Sri Bimbadhar Mishra (Dead) by LRs Vrs. Balabhadra Sarangi (Dead) by LRs did not commit any serious illegality while confirming the findings in the suit in absence of any clinching evidence over the schedule land being a part of the plot owned by the original plaintiff. It is also submitted that the learned Civil Judge (Junior Division), Nayagarh rightly appreciated the evidence on record and considered the report of the Survey Knowing Commissioner received as evidence and correctly arrived at a conclusion dismissing the claim of the plaintiff and relief for permanent injunction, a conclusion so reached at has also been confirmed in appeal, so therefore, the concurrent findings are not to be disturbed and hence, the appeal is liable to be dismissed. 7. The plaintiff examined himself as P.W.1, whereas, the original defendant stood examined as D.W.2. Survey Knowing Commissioner’s report stands marked as Ext.4 from the side of the plaintiff. In fact, the demarcation through a Commission was directed in the suit with the said report received and proved. The learned Civil Judge (Junior Division), Nayagarh examined Ext.4 treating the same as a piece of evidence not binding to it and tested is probative value and acceptance in juxtaposition to the evidence on record. As earlier mentioned, the said report was not accepted notwithstanding absence of objection from the side of the defendant. In other words, Ext.4 did not inspire the confidence of the learned Civil Judge (Junior Division), Nayagarh and therefore, declined to accept the same. It is made to understand that the court of 1st instance ventured itself to examine Ext.4 with reference to the village map marked as Ext.7 and finally, concluded that such report is a defective one and cannot, therefore, be relied upon and so the only way to decide and adjudicate upon the dispute is by considering documentary evidence on record. RSA No.375 of 2005 Page 4 of 8 Sri Bimbadhar Mishra (Dead) by LRs Vrs. Balabhadra Sarangi (Dead) by LRs 8. A reference has been made to Ext.1 to claim that the plaintiff has title over Ac.0.03 decimal which has been challenged by the defendant on the ground that the plot in question purchased relates to an area of Ac.0.02 decimal. In fact, the defendant produced a certified copy of the sale deed in respect of the plot purchased by the plaintiff as marked as Ext.C to show that the alleged purchase on 10th January, 1975 extends to Ac.0.02 decimal. The learned courts below dismissed Ext.1 on the ground that a settlement entry cannot create any title and held that the plaintiff since purchased Ac.0.02 decimal of land cannot therefore be allowed to register a claim over the schedule land. In other words, the conclusion is that the plaintiff has title over Ac.0.02 decimal and not beyond and since reliance could not be placed on Ext.4 in absence of any other evidence except Ext.1, learned Civil Judge (Junior Division), Nayagarh rejected the claim of the plaintiff and dismissed the suit. The question is, whether, the schedule land forms a part and parcel of Plot No.1525? Admittedly, defendant has not extended any claim over any portion of Plot No.1525. The adjoining land situate over Plot No.1526 owned by the original defendant. So, the real dispute is over the schedule land lying between Plot Nos.1525 and 1526 over which the plaintiff claims title on the basis of Ext.1 and denied by the defendant referring to Ext.C with the plea that it does not form a part of Plot No.1525 and the purchase by the plaintiff is confined to Ac.0.02 decimal. 9. As per the evidence on record, there is a wall over Plot Nos.1525 and 1526 adjoining the schedule land. In fact, a portion of the space left between both the plots is alleged to be the schedule land and according to the plaintiff, a wall has been raised by the defendant illegally. In so far as, the defendant is concerned, no any evidence was laid laying claim over the RSA No.375 of 2005 Page 5 of 8 Sri Bimbadhar Mishra (Dead) by LRs Vrs. Balabhadra Sarangi (Dead) by LRs schedule land situate adjoining Plot No.1525. The plaintiff has pleaded that the schedule land is a part of the space which has been left for long for passage of rainwater which belongs to Plot No.1525 and can never be a part of Plot No.1526 as a continuous wall stands with the boundary running from East to West. Hence, the question boils down to the following, who owns the schedule land which is alleged to be in unlawful occupation of the defendant? It is no doubt correct to contend that absence of any evidence claiming title over the schedule land by the adversary does not strengthen the case of the plaintiff, who is to stand on his own legs. It is also incorrect the hold that the schedule land is no part of Plot No.1525 merely for the reason that the purchase vide Ext.C is in respect of Ac.0.02 decimal in contrast to Ext.1. Neither referring to Ext.1, title over the schedule land can be confirmed nor would it be proper to deny on the ground that Plot No.1525 measures an area of Ac.0.02 decimal and hence, it forms no part of the same, especially, when the defendant has not laid a counter claim. 10. The possession over the schedule is claimed by the plaintiff referring to the decision in Rame Gowda (supra). It is contended that such possession can be protected as against defendant, who does not have a better title than the plaintiff. It is contended that a declaration on possessory title and injunction even by someone having no title can be allowed against the true owner in view of the decision in Somnath Burman (supra). In so far as, the contention that the report i.e. Annexure-4 has been rejected and the learned Civil Judge (Junior Division), Nayagarh while doing so, overstepped the limit, decision in Batakrushna Naik (supra) is cited. The Court is of the considered view that no local inspection was made rather such report was subjected to scrutiny by the court itself. So therefore, in the humble view of the Court, the RSA No.375 of 2005 Page 6 of 8 Sri Bimbadhar Mishra (Dead) by LRs Vrs. Balabhadra Sarangi (Dead) by LRs aforesaid decision is inapplicable as no local inspection was ever held by the court of 1st instance. The other decisions which have been placed reliance on are not so relevant and hence, needs no detailed discussion. 11. A Survey Knowing Commissioner was deputed for demarcation, who thereafter, submitted Ext.4. It has been examined with reference to the village map. If a Survey Knowing Commissioner was deputed, in normal course, on receipt of report, objection is invited from the parties to the lis. The acceptance or otherwise of the report depends on the objections received. Even on objection of one of the parties, the Survey Knowing Commissioner is subjected to cross-examination. A final decision is rendered on the acceptability of report. If the report is not accepted, normally, a fresh Commission is issued unless the decision of the court is to the contrary. In the suit, Ext.4 was treated as evidence from the side of the plaintiff. In fact, no objection was invited from the defendant and obviously not from the plaintiff as the same favoured him. The plaintiff has had no occasion to file an objection since Ext.4 did not affect him, which however, failed to satisfy the learned Civil Judge (Junior Division), Nayagarh. As stated before, when a Survey Knowing Commissioner was appointed and deputed, on receiving a report after demarcation, he ought to have been treated as a court witness with objections being invited. However, there has been a clear departure from the normal course followed and instead, such report though marked as Ext.4 but stood rejected at the end. In the considered view of the Court, the court of 1st instance, if at all discarded Ext.4, in absence of any independent claim from the side of the defendant and for a proper and effective adjudication of the dispute should have issued a fresh Commission instead of dismissing the suit and on the premise that the plaintiff has title RSA No.375 of 2005 Page 7 of 8 Sri Bimbadhar Mishra (Dead) by LRs Vrs. Balabhadra Sarangi (Dead) by LRs over Ac.0.02 decimal only and cannot therefore take advantage of Ext.1. Such other evidence on record really does not deserve attention as it has no bearing on the dispute except justifying rival claims and nothing more. Worthy purpose would therefore be served if fresh demarcation is held with a Survey Knowing Commissioner appointed for a decision by the court of 1st instance. Consequently, the substantial question of law is answered. 12. Hence, it is ordered. 13. In the result, the appeal stands allowed. As a necessary corollary, the impugned judgment in R.F.A. No.10 of 2004 by the learned Additional District Judge, Nayagarh is hereby set aside with the matter remanded back carrying a direction to the learned Civil Judge (Junior Division), Nayagarh to freshly appoint a Survey Knowing Commissioner to demarcate the plots in question and thereafter to proceed and to dispose of Title Suit No.25 of 1995 in accordance with law keeping in view the observations made herein above. No costs. (R.K. Pattanaik) Judge TUDU Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 07-Dec-2023 13:23:46 RSA No.375 of 2005 Page 8 of 8