Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK S.A. No.2 of 2000 In the matter of an appeal under Section 100 C.P.C, 1908. *** Rankamani Sahu Aged 42 years Son of Krushna Chandra Sahu United India Insurance Col. Ltd, Ashok Talkies Road, Sambalpur Town, Now residing at Gurupada, Sambalpur Town, District: Sambalpur … Appellant. -VERSUS- Ashok Kumar Panda Aged 43 years Son of Durga Prasad Panda of Gopalmal P.S:Ainthapali, Dist:Sambalpur … Respondent. Counsel appeared for the parties: For the Appellant : Mr. Budhiram Das, Advocate appearing on behalf of Mr. N.C. Pati, Advocate. For the Respondent : None. S.A. No.2 of 2000 Page 1 of 14 P R E S E N T: HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Dates of Hearing : 02.07.2024 :: Date of Judgment : 12.07.2024 ANANDA CHANDRA BEHERA, J.— JUDGMENT 1. 2. This 2nd Appeal has been preferred against the confirming Judgment.
Legal Reasoning
The appellant of this 2nd Appeal was the defendant before the Trial Court in the suit vide T.S. No.8 of 1994 and he was the appellant before the First Appellate Court in the 1st Appeal vide T.A. No.12 of 1998. The respondent of this 2nd Appeal was the plaintiff before the Trial Court in the suit vide T.S. No.8 of 1994 and he was the respondent before the First Appellate Court in the1st Appeal vide T.A. No.12 of 1998. The suit of the plaintiff vide T.S. No.8 of 1994 was a suit for recovery of possession & permanent injunction. 3. The case of the plaintiff (respondent in this 2nd Appeal) against the defendant (appellant in this 2nd Appeal) vide T.S. No.8 of 1994 before the Trial Court was that, he (plaintiff) is the owner of the suit land vide M.S. Plot Nos.1778 under M.S. Khata No.237 at Darlipali in Unit No.14 inside S.A. No.2 of 2000 Page 2 of 14 Sambalpur Town. He (plaintiff) had purchased the suit land from one Dileswar Mohapatra through registered sale deed dated 20.10.1989 and since then, he (plaintiff) is the owner over the suit land. The plaintiff has constructed his house over a portion of the suit plot No.1778 and he (plaintiff) along with his family members are residing in the said house since 1992. He (plaintiff) has also mutated the suit plot No.1778 to his name through Mutation Case No.130 of 1990. The defendant is the owner of M.S. Plot No.1777, which is situated to the adjacent north of the suit plot No.1778. During the course of making construction of the building of the plaintiff over his plot No.1778 i.e. over the suit plot No.1778, the defendant started construction of a latrine, a bathroom and a septic tank encroaching the northern portion of suit plot No.1778 of the plaintiff. The said area of the suit plot No.1778 encroached by the defendant has been described in Schedule “B” of the plaint, which is the suit land. The entire area of suit plot No.1778 has been described in Schedule “A” of the plaint. For which, Schedule “B” is the part of Schedule “A”. When, the defendant forcibly encroached the Schedule “B” land, then, he (plaintiff) approached the local Tahasildar through a demarcation case vide Demarcation Case No.54 of 1994 for demarcation of the middle boundary line between suit plot No.1778 of the plaintiff and plot No.1777 of the defendant. Accordingly, the Tahasildar demarcated the middle boundary line between the suit plot S.A. No.2 of 2000 Page 3 of 14 No.1778 and 1777 through an Amin on dated 29.01.1994. But, still then, the defendant did not vacate the Schedule “B” land. For which, without getting any way, the plaintiff approached the Civil Court by filing the suit vide T.S. No.8 of 1994 against the defendant praying for recovery of possession of the encroached portions of suit plot No.1778 i.e. Schedule “B” land directing the defendant for removal of the structures from the same and to injunct the defendant permanently from creating any sort of disturbance in the possession of the plaintiff over the suit plot No.1778 including the Schedule “B” land. 4. Having been noticed from the Trial Court in the suit vide T.S. No.8 of 1994, the defendant contested the same by filing his written statement denying the allegations alleged by the plaintiff against him (defendant) taking his stands inter alia therein that; He (defendant) had no knowledge about the purchase of suit plot No.1778 by the plaintiff, though, he (defendant) admitted the construction of the residential house by the plaintiff over suit plot No.1778. He (defendant) denied to have made any encroachment to any portion of suit plot No.1778 described in Schedule “B” of the plaint making construction of latrine, bath room and septic tank. The specific case of the defendant was that, the so called encroachment described by the plaintiff in Schedule “B” is totally false. He S.A. No.2 of 2000 Page 4 of 14 (defendant) does not know about the so called demarcation case No.54 of 1994. No demarcation has been made by the Tahasildar through any Amin in his presence. The report if any submitted by the Amin is a false report. The further case of the defendant was that, the plaintiff had requested to leave a passage in his plot No.1777, to which, he (defendant) did not agree, for which, he (plaintiff) filed the suit with the concocted story. According to him (defendant), he (defendant) has constructed his building in his own land i.e. on M.S. Plot No.1777 and he has made all such constructions including septic tank, bathroom and latrine in his own plot no.1777. When, he (defendant) was undertaking constructions over his own plot No.1777, the plaintiff raised false objection apprehending encroachment of some portions of his plot No.1778 at its northern side, for which, he (plaintiff) measured his plot No.1778 through an Amin and when after such measurement, he (plaintiff) was satisfied that, he (defendant) has not encroached any portion of land of the plaintiff, then, he (defendant) continued constructions over his own plot No.1777, but unfortunately, he (defendant) could not raise boundary wall around his plot No.1777. Therefore, if it is found that, he (defendant) has raised some constructions over any portion of the land of the plaintiff i.e. over any portion of suit plot No.1778, still then, he (plaintiff) is not entitled for recovery of possession of the same. Because, he (plaintiff) is estopped under law to claim the same for S.A. No.2 of 2000 Page 5 of 14 his silence since the date of constructions till its completion. When, he (defendant) started the construction of boundary wall around his plot No.1777 and dug foundation, for the same, the plaintiff filed the suit with a false story alleging encroachment of Schedule “B” land. But, in fact, he (defendant) has not encroached any portion of the land of the plaintiff. For which, the plaintiff is not entitled for any relief in the suit. As, due to the filling of the suit by the plaintiff against him (defendant), he (defendant) is facing difficulties in letting out his building situated on his own plot No.1777, for which, he (defendant) filed a counter claim along with his written statement against the plaintiff claiming damages at the rate of Rs.2,500/- per month from the plaintiff along with a prayer for temporary injunction in order to restrain the plaintiff from creating any sort of disturbance by entering into his area and also prayed for the dismissal of the suit of the plaintiff and for the decree of his counter claim against the plaintiff. The plaintiff submitted his written statement against the counter claim of the defendant denying the allegations alleged by the defendant stating that, he (plaintiff) has not done any act or activity causing any loss or damage to the defendant. Therefore, the counter claim of the defendant is liable to be dismissed against him (plaintiff). S.A. No.2 of 2000 Page 6 of 14 5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 7 numbers of issues were framed by the Trial Court in the suit vide T.S. No.8 of 1994 and the said issues are: ISSUES Whether the defendant has encroached upon the suit land? Whether by encroaching the defendant constructed the latrine, bath Whether the plaintiff has launched a vexatious proceeding when he was 1. 2. room and a septic tank? 3. frustrated to get a passage from the defendant? 4. instituting the present case? 5. damages from the date of filing of the suit? 6. 7. Whether the plaintiff has caused any damage to the defendant by Whether the defendant is entitled to receive Rs.2,500/- per month as Whether the plaintiff has any cause of action to bring the suit? Whether the suit is maintainable and to what relief? 6. In order to substantiate the aforesaid reliefs sought for by the plaintiff against the defendant, he (plaintiff) examined 4 witnesses from his side including him as P.W.1 and relied upon the documents vide Exts.1 to 12. On the contrary, in order to defeat/nullify the suit of the plaintiff and for the decree of his counter claim, he (defendant) also examined 4 witnesses on his behalf including him as D.W.1 and exhibit the documents from his side vide Ext.A to K. 7. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues in favour of the plaintiff and against the defendant and basing upon the findings and observations made by the Trial Court in the issues in S.A. No.2 of 2000 Page 7 of 14 favour of the plaintiff and against the defendant, the Trial Court decreed the suit of the plaintiff vide T.S. No.8 of 1994 on contest against the defendant but without cost and injuncted the defendant permanently from entering into the Schedule “B” land of the plaintiff and from raising any construction on the same and also directed the defendant to demolish the structures raised on the schedule “B” land and to vacate the same within 2 months and dismissed the counter claim of the defendant against the plaintiff as per its Judgment and Decree dated 02.03.1998 and 18.03.1998 respectively assigning the reasons that, the defendant is not the owner of the suit plot No.1778 described in Schedule “A” of the plaint and the land described in Schedule “B” of the plaint is a part of the Schedule “A” land. The plaintiff is the exclusive owner of the land described in Schedule “A” & “B” of the plaint, in which, the defendant has no interest at all and the well corroborated evidence adduced on behalf of the plaintiff is going to establish that, the defendant has encroached the part of the suit plot No.1778 described in Schedule “B” of the plaint, in which, he (defendant) has no interest, for which, he (defendant) should deliver the vacate possession of the Schedule “B” land to the plaintiff by demolishing the structures from the same. The plaintiff has not caused any damage to the defendant, for which, the defendant is not entitled for the decree of his counter claim against the plaintiff. S.A. No.2 of 2000 Page 8 of 14 8. On being dissatisfied with the aforesaid Judgment and Decree dated 02.03.1998 and 18.03.1998 respectively passed by the Trial Court in T.S. No.8 of 1994 in favour of the plaintiff against the defendant, he (defendant) challenged the same by preferring the 1st Appeal vide T.A. No.12 of 1998 being the appellant against the plaintiff arraying him (plaintiff) as respondent. After hearing from both the sides, the First Appellate Court dismissed that 1st Appeal vide T.A. No.12 of 1998 of the defendant concurring/accepting the findings and observations made by the Trial Court in the suit vide T.S. No.8 of 1994 in favour of the plaintiff and against the defendant as per its Judgment and Decree dated 18.09.1999 & 01.10.1999 respectively in T.A. No.12 of 1998. 9. On being aggrieved with the aforesaid Judgment and Decree of the dismissal of the 1st Appeal vide T.A. No.12 of 1998 of the defendant, he (defendant) challenged the same by preferring this 2nd Appeal being the appellant against the plaintiff arraying him (plaintiff) as respondent. 10. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e. i. Whether the findings of the learned court below relating to encroachment of the suit land by the defendant is vitiated due to non- consideration of the material evidence on record as referred in Para-5 of the memo of appeal? S.A. No.2 of 2000 Page 9 of 14 ii. Whether the plaintiff has made any foundation for secondary evidence vide Ext.1 in absence of any material to show the calling for of the original sale deed and whether the learned courts below should have drawn adverse inference against the plaintiff for non-production of the original sale deed? 11. I have already heard from the learned counsel for the appellant (defendant) only, as none appeared from the side of the respondent (plaintiff) to participate in the hearing of the 2nd Appeal. 12. As the above two formulated substantial questions of law are interlinked with the Judgment and Decree of the Trial Court and First Appellate Court, for which, both the substantial questions of law are taken up together analogously for their discussions hereunder: It is the specific case of the plaintiff that, he (plaintiff) has purchased the suit plot No.1778 described in Schedule “A” of the plaint on dated 20.10.1989 from one Dileswar Mohapatra and since then, he has been possessing the same and he (plaintiff) has also constructed his house on suit plot No.1778 and since the year 1992, he (plaintiff) along with his family members are residing therein. The defendant has not at all disputed to the ownership and possession of the plaintiff over Hal Suit Plot No.1778. Rather, he (defendant) has admitted the same in his written statement by stating that, the plaintiff has constructed his residential house on suit plot No.1778. But, whereas, he S.A. No.2 of 2000 Page 10 of 14 (defendant) has denied the encroachment of any portion of suit plot No.1778 described in Schedule “B” of the plaint as alleged by the plaintiff against him (defendant). Accordingly, the defendant has indirectly admitted to the purchase of the plaintiff to the suit plot No.1778. Ext.1 is the certified copy of the sale deed, through which, the plaintiff has purchased the suit plot No.1778 from Dileswar Mohapatra. 13. It is the settled propositions of law as per sections 57,17 & 18 of the Indian Evidence Act, 1872 that, there cannot be any better evidence for the plaintiff than the admissions of the defendant. Because, as per law, facts admitted need not be proved. When the defendant has admitted to the purchase of suit Hal Plot No.1778 by the plaintiff through registered sale deed dated 20.10.1989 and when the certified copy of the same has been marked as Ext.1 on behalf of the plaintiff, then, at this juncture, the calling for of the original of the Ext.1 is immaterial. Therefore, even in absence of the original sale deed of the suit land, the ownership of the plaintiff over suit Plot No.1778 is held to be proved through its certified copy vide Ext.1 as per the above admissions of the defendant. It is the undisputed case of the parties that, plaintiff is the owner of the suit plot No.1778 described in Schedule “A” of the plaint. The defendant S.A. No.2 of 2000 Page 11 of 14 is the owner of its northern side adjacent plot No.1777. The Schedule “B” land is the part of Schedule “A”, which is the suit land. The well corroborated pleadings and evidence from the side of the plaintiff is going to show that, the defendant has encroached some land of suit plot No.1778 from its northern side, which has been described in Schedule “B”. The Schedule “B” suit land is adjacent to the plot No.1777 of the defendant. As such, the plaintiff is the undisputed owner of entire suit plot No.1778 described in Schedule “A”, which includes Schedule “B”, in which the defendant has no interest. Because, the defendant is the owner of plot No.1777, but, he (defendant) is not the owner of suit plot No.1778. 14. When, the land i.e. Plot No.1777 of the defendant being a separate and different plot has no connection with the suit plot No.1778 of the plaintiff, then, at this Juncture, the Judgment and Decree passed by the Trial Court & First Appellate Court for recovery of possession of the suit land (which is part of suit plot No.1778) from the defendant cannot be held as erroneous. The conclusions drawn above finds support from the ratio of the following decisions of the Apex Court: I. 2015 (II) CLR (SC) 1126:Zarif Ahmad (D) through Lrs. & Another Vs. Mohd. Farooq— Specific Relief Act, 1963—Section 6—Plaintiff establishing his possession over plot No.358 by oral and documentary S.A. No.2 of 2000 Page 12 of 14 evidence—Defendants possessing plot No.357—Trial Court decreeing suit only in respect of plot No.358—No illegality. (Para Nos.16 & 17) II. 2017 (4) CCC 504 (SC) & 2017 (I) CLR (SC) 256: Kundan Lal & Another Vs. Kamruddin & Another—The appellant was in possession and allotted different survey number and that he had no right to claim the suit property—Judgment and Order passed by the Courts below is sustainable. (Para No.9) 15. Here in this suit at hand, when the defendant is the owner of plot No.1777 and when, the said plot No.1777 of the defendant being a separate plot has no connection with suit plot No.1778 and when, the plaintiff is the owner of entire suit plot No.1778 including the suit land described in Schedule “B” of plot No.1778, in which, the defendant has no interest, then, at this juncture, in view of the principles of law enunciated in the ratio of the aforesaid decisions, the Judgment and Decree passed by the Trial Court in favour of the plaintiff and against the defendant directing the defendant to deliver the vacant possession of the suit land to the plaintiff along with the decree for permanent injunction against him (defendant) cannot be held as erroneous. For which, the question of interfering with the same through this 2nd Appeal filed by the appellant (defendant) does not arise. 16. Therefore, there is no merit in the 2nd Appeal filed by the appellant (defendant). The same must fail. S.A. No.2 of 2000 Page 13 of 14 17. In result, the 2nd Appeal filed by the appellant (defendant) is dismissed on merit, but without cost. (ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack The 12th July, 2024// Rati Ranjan Nayak Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 23-Jul-2024 16:07:05 S.A. No.2 of 2000 Page 14 of 14