The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 544 of 2003 An appeal under Section 100 Code of Civil Procedure. --------------- Gobardhan Karna ...… Appellant -Versus- Krupasindhu Khamari and Others ...… Respondents Advocate(s) appeared in this case:- _______________________________________________________ For Appellant : M/s. P.V. Ramdas & P.V. Balakrishna For Respondents : Mr. A.R. Dash, Additional Government Advocate _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 7th August, 2024 SASHIKANTA MISHRA, J.
Facts
This is an appeal by the Plaintiff against the confirming judgment passed by learned Additional District Judge (FD), Bargarh in Title Appeal No.10/42 of 2001- 2002 on 30.08.2003, followed by decree whereby the Page 1 of 9 judgment passed by learned Civil Judge(Junior Division), Bargarh on 20.03.2001 followed by decree in Title Suit No. 29 of 2000 was confirmed. 2. For convenience, the parties are referred to as per their respective status before the trial Court. 3. The Plaintiff filed the suit for permanent injunction against the defendants. The case of the Plaintiff was that one R. Karna had two sons, namely, Chaturbhuja Karna and Madan Karna. After death of Badi Karna, the ancestral property of the family was amicably partitioned between his two sons whereby Ac.0.19 decimals of land appertaining to MS Plot No.562 along with other lands appertaining to MS Holding No.19 fell to the share of Chaturbhuja Karna. He was in exclusive possession of the same till his death.. After his death, the Plaintiff, being his son, succeeded to the property. Said property has been described in schedule “B” to the plaint. It is stated that on 20.05.2000 while the defendant No.1 was demarcating the scheduled lands with the intention of constructing a road, the Plaintiff objected to the same on the ground that he is in possession of the “B” schedule land. Though the Page 2 of 9 Defendant No.1 left the spot that day, yet on the next day he started construction of the road stating that the land had been acquired by the State government for such construction. It is the further case of the Plaintiff that he is performing his agricultural operations over “A” schedule land. Apprehending dispossession from the “B” schedule land, over which the Plaintiff claims that the Defendants have no manner of right, he filed the suit for permanent injunction. 4. Pursuant to notice, Defendant Nos.1 and 2 appeared and contested the suit, by filing their written statement denying all the averments of the plaint. It was stated by Defendant No.1 that on the suit land, the panchayat village road is in existence since long being used by the public at large to pass through from village Mahakhand to Kumelsingha. As such, no new road was being constructed. Further, the Plaintiff had no title over the suit land and was never in possession thereof. 5. The Defendant No.2 also filed his written statement taking more or less the same stand as Defendant No.1 with regard to the existence of the panchayat road. Page 3 of 9 6. Basing on the rival pleadings, the trial court framed following issues for determination:- “(1) Is there any cause of action to bring this suit?\ (2) Whether the plaintiff has got right, title and interest over the suit land? (3) Whether the plaintiff/defendants are in possession of the suit land? (4) Whether the suit is bad for non-joinder of necessary parties? (5) Whether the suit is maintainable in the eye of law? (6) What relief, if any, the plaintiff is entitled to?” 7. In course of hearing, on Issue No.2, the trial Court took note of the documentary evidence adduced by the Plaintiff to hold that the Plaintiff had suppressed the consolidation ROR wherein portion of the suit land was not recorded either in his name or in the name of Chaturbhuja. Further, the Plaintiff had not filed the consolidation map or Parcha on the plea that the consolidation scheme had not yet been fully concluded. The trial Court, however found that the consolidation operation had already been concluded with consolidation RORs being distributed. As such, it came to the finding Page 4 of 9 that the Plaintiff has no right, title or interest over the suit land. The other issues were accordingly decided against the Plaintiff by holding that the road in question is a portion of the gram panchayat road which runs on NH-6 to village Mahakhanda being used by the villagers of the locality, which the Plaintiff never possessed. On such findings more or less the trial court dismissed the suit. 8. Being aggrieved, the Plaintiff carried the matter in appeal. The 1st Appellate Court, after considering the contentions raised, held that the Plaintiff could not successfully establish his possession over the suit land. Moreover, the Plaintiff did not take any steps to get the land demarcated through a Survey knowing Commissioner. On such findings, the 1st Appellate Court dismissed the appeal confirming thereby the judgment of the trial Court. 9. Being further aggrieved, the Plaintiff has approached
Legal Reasoning
this Court in second appeal, which has been admitted on the following substantial questions of law.:- “(1) Whether the learned Courts below decided the suit for permanent injunction keeping in view the Page 5 of 9 provisions of Section 38 of the Specific Relief Act. Manifestly the learned Courts below have ignored the said provisions of Section. 38 as such the decree passed by it cannot said to be in accordance with law? (2) Whether in the facts circumstances of this case the findings relating to possession is based on documentary evidence. The documentary evidence coupled with oral evidence clearly establish plaintiff’s title and possession over the disputed land. The learned courts below are wrong in law in holding that the plaintiff has no title or possession over the disputed site?” 10. Heard Mr. P.V. Balakrishna, learned counsel for the plaintiff-appellant and Mr. A.R. Dash, learned Addl. Government Advocate appearing for defendant-respondent Nos.2 and 3. Despite sufficient notice, there was no appearance from the side of defendant-respondent No.1. 11. Mr. Balakrishna assails the impugned judgments by submitting that both the courts below have been swayed away by the fact that the consolidation map of the area in question was not produced by the Plaintiff and so also the consolidation ROR. It is also submitted that the trial court Page 6 of 9 ought to have considered the other evidence adduced by the Plaintiff showing his possession. The 1st Appellate Court also rejected the contentions of the Plaintiff by drawing adverse inference against him for not getting the land demarcated by a Survey knowing Commissioner. According to Mr. Balkrishna, the factum of possession could not have been proved by a Survey knowing Commissioner alone. 12. Mr. Dash, learned Addl. Government Advocate submits that both the Courts below have found from the evidence on record that the Plaintiff was never in possession over the relevant portion of the suit land. This being a clear question of fact and being based on the evidence on record, there is no need for this Court to interfere in the matter. 13. Having perused the impugned judgments and upon hearing learned counsel for the parties, this Court, firstly finds that the Plaintiff claims to be in possession over a portion of the suit land, which was allegedly encroached by the State ostensibly for the purpose of construction of a road. Hence, the question of possession becomes vital to Page 7 of 9 sustain the case of the Plaintiff. The area in question was under consolidation operations, which appear to have been concluded at the time of hearing of the suit. The trial court drew adverse inference against the Plaintiff for non-filing of the consolidation ROR and the map. According to Mr. Balkrishna, the Plaintiff could not have filed the said documents as he had preferred appeal, which was then pending but then, this Court fails to understand as to what prevented the Plaintiff to file these documents before the 1stAppellate Court if, they were not available during the trial of the suit. That apart, the Plaintiff could not prove his possession over that portion of the property which was to be used as a road. That apart, it is borne out from the evidence on record that the road in question was not being constructed newly but was an old road already in use by the villagers since long. As has been held by the 1st Appellate Court and according to this Court, rightly so, the Plaintiff could also have got the portion of the suit land demarcated by a Survey knowing Commissioner but he did not do so. Page 8 of 9 14. Under such circumstances, both the courts below have held that the Plaintiff could not prove his possession over that portion of the suit land, which was used as a road. From what has been narrated hereinbefore, this Court fully concurs with such findings. Moreover, these are all factual findings and it has not been demonstrated as to how such findings are incorrect so as to persuade this Court to interfere. It is well settled that the Second Appellate Court would always be slow to interfere with concurrent findings of fact unless it is shown that same are either perverse or against the weight of evidence on record. Such is not the case in the present appeal. 15. For the foregoing reason therefore, this Court finds no merit in the appeal which is therefore, dismissed.
Decision
There shall be no order as to costs. B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 13-Aug-2024 19:48:53 ……..………………….. Sashikanta Mishra, Judge Page 9 of 9