The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK (A) RSA NO.18 OF 2009 In the matter of an Appeal under Section-100 of the Code of Civil Procedure assailed the judgment dated 01.09.2008 passed by the learned Additional District Judge, Bargarh in RFA Nos.13 of 2004 & RFA No.14 of 200 setting aside judgment and decree dated 23.09.2003 passed by the learned Civil Judge (Sr. Division), Bargarh in Title Suit No. 23 of 1992 and Title Suit No.100 of 1992 and the judgment and decree . Sri Gopal Goshala :::: Appellant. -:: VERSUS ::- Banamali Barik & Others :::: Respondents. For Appellant :::: M/s. R.K. Mohanty, Sr. Advocate, S.N. Biswal, S.K. Mohanty, P. Jena, M.R. Dash, N. Das, Advocates. For Respondents :::: M/s. Soumya Mishra, E. Agarwal, S. Modi, S.K. Samantaray Advocates. (B) RSA NO.19 OF 2009 Sri Gopal Goshala :::: Appellant. -:: VERSUS ::- Banamali Barik & Others :::: Respondents. For Appellant :::: M/s. R.K. Mohanty, Sr. Advocate, S.N. Biswal, S.K. Mohanty, P. Jena, M.R. Dash, N. Das, Advocates. For Respondents :::: M/s. Soumya Mishra, E. Agarwal, S. Modi, S.K. Samantaray Advocates. {{ 2 }} PRESENT : THE HON’BLE MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Hearing:: 04.01.2023 : Date of Judgment :: 10.03.2023 --------------------------------------------------------------------------------------- D. Dash, J. Since both the above noted Appeals (A & B) under Section-100 of the Code of Civil Procedure (hereinafter called as ‘the Code’) arise out of common judgment passed by the learned Additional District Judge, Bargarh in RFA No.13 of 2004 and RFA No.14 of 2004, followed by decrees, those were heaad together for their disposal by this common judgment. 2.
Facts
One Bhikari Charan Barik, the Respondent No.1 as the plaintiff had filed the suit i.e. Title suit No.23 of 1992 for permanent injunction restraining the Appellant and other Respondents (Defendants) from entering upon the suit land. Said Bhikari died during suit and his legal representatives having come on record had pursued the said suit. During pendency of this Appeal, Respondent No.2 having died his legal representatives are also on record. The Respondent Nos. 1 to 4 then again had filed one suit i.e. Title suit No.100 of 1992 seeking a decree of declaration of right, title and interest, confirmation of possession over the suit land and also for permanent injunction, against the Appellant and others being arraigned as Defendants therein with the alternative prayer for recovery of possession in case of their dispossession, during the suit. The subject Page 2 of 15 {{ 3 }} matter of Title Suit No.23 of 1992 is Ac.0.02.2/3 decimals and that of Title suit No.100 of 18992 as Ac.0.60 ¼ decimals. However above lands appertain to the one and same M.S. Plot No.1618 at mouza: Bargarh. The suits therefore were consolidated and tried together as the case of the parties in both are identical. The Trial Court dismissed both the suits. 3. The unsuccessful Plaintiffs having carried two separate Appeals as noted above under section-96 of the Code. The First Appellate Court has allowed the same, the following order has been passed by the First Appellate Court:- “There being thus gross illegality, perversity and arbitrariness in the judgment and decree of the Court below, the entire judgment and decree is set aside and the first appeal is allowed. The title of the plaintiffs over the suit schedule ‘A’ land as incorporated in Title Suit No.100 of 1992 is declared. There being substantial materials on record that plaintiffs were dispossessed during pendency of Title Suit No.23 of 1992, defendants are hereby directed to deliver vacant possession of Schedule ‘A’ property to the plaintiffs with the existing structure built by the plaintiffs within a period of two months from the date of this order.” The title of the Plaintiff over the suit Schedule-A land has incorporated in Title suit No.100 of 1992 is declared, there being substantial material on record that the Plaintiffs were dispossess during pendency of Title Suit No.23 of 1992, the Defendants are hereby Page 3 of 15 {{ 4 }} directed to vacate possession of the Schedule-A property to the Plaintiffs with the existing structure built by the Plaintiffs within a period of two months from the date of this order. Hence, two second Appeals as noted above filed by the aggrieved Defendants (Defendant No.3 of Title Suit No.23 of 1992), equal to (Defendant No.1 of Title Suit No.100 of 1992). 4. For the sake of convenience, in order to avoid confusion and bring in clarity, their respective parties hereinafter have been referred to as they have been assigned with the position in the Trial Court. 5. Plaintiffs case is that the suit land originally belonged to one Saradhakar Barik, who is their ancestor and as such it was recorded in his name in the record of Hamid Settlement. On the death of Saradhakar, his sons Dhoba Barik and Chandramani Barik succeeded to the same. Chandramani died leaving behind his son Ajodhya, who succeeded to his interest over the suit land. During Major Settlement operation, the suit land and other lands of Dhoba Barik and Ajodhya Barik stood recorded jointly; they partitioned their lands amicably and it is stated that the suit land fell to the share of Dhoba Barik, who remained in separate possession of the same. On the death of Dhoba, Bhikari succeeded to the same and he constructed two rooms on the portion of the said land upto roof level. It is alleged that on 23.02.1992, the Defendants attempted to dispossess him from the suit land by force. Page 4 of 15 {{ 5 }} During pendency of the suit, the original Plaintiff, Bhikari having died, his legal representatives who are the substituted Plaintiffs in the said suit while prosecuting the said suit filed another suit i.e. Title suit No.100 of 1992 claiming right, title, interest and possession over the suit land which is of a larger extent and includes the land which is the subject matter of the Title suit No.23 of 1992. It is stated that the Defendant i.e.
Legal Reasoning
evidence brought on record, I find there is no dispute that Hamid Settlement Plot No.1107 to an extent of Ac.0.63 decimals corresponds to Major Settlement Plot No.1618 to an extent of Ac.0.64 decimals. Furthermore, it is also not disputed that Krupasindhu Dashh, the Maufidar who was in Khas possession of “GOCHAR” land to an extent of Ac.3.23 decimals pertaining to Plot No.1008/1 (Ext.E), on 21.7.1923 he gifted that extent of land in favour of defendant No.1 and since then defendant No.1 through its trustees was in continuous possession, and plaintiffs did not claim any extent out that plot no.1008/1 to an total extent of Ac.3.23 decimals gifted in favour of defendant no.1 vide Ext.A.” Having said as above, it has rightly gone to say that moot question for consideration is whether the suit plot which admittedly pertain to Major Settlement Plot No.1618 corresponding to Hamid Settlement Plot No.1107 corresponds to Plot No.1008/1 of Dewar Settlement out of extent of Ac.3023 decimals of land gifted by Krupasindhu in favour of Defendant-Goshala in registered deed of gift, Page 8 of 15 {{ 9 }} which has been admitted in evidence and marked Ext.A. Thereafter, the First Appellate Court having proceeded to examine the evidence has answered the crucial issues in favour of the Plaintiffs in saying that they have proved their antecedent title over the suit land. And the Defendant having not been able to establish that they have perfected title over the suit land by way of adverse possession, which extinguishing the title of the Plaintiffs over the suit land. The suit has been decreed by overturn the possession of the Trial Court in non-suiting the Plaintiffs. 10. On 06.09.2022, when this Court in the matter of admission of the Appeal heard, the learned Senior Counsel for the Appellants; the learned Counsel for the Respondent Nos. 1 to 4 (Plaintiffs); who had appeared also assisted in the said hearing. This Court found that the fate of the suit hinges upon the answer to following question:- “Whether the land under Major Settlement Plot No.1618 corresponding to Hamid Settlement Plot No.1107; corresponds to the land under Plot No.1008/1 of Dewar Settlement extending to Ac.3.23 covered under the deed of gift executed by Krupasindhu in favour of Gopal Goshala (Defendant No.1) vide Ext.A?” It was also found that whether the First Appellate Court finding on the above score stands to the legal scrutiny or not is the substantial question of law standing to be answered in these Appeals. Therefore, instead of straightway admitting these Appeals of the year 2009 for Page 9 of 15 {{ 10 }} hearing on the above substantial questions of law, this Court upon hearing learned Counsels for the parties and on going through the rival pleadings as an endeavour to dispose of the Appeals early without further delay had passed the following order:- “8. It is not in dispute that the suit land pertaining to plot no.1618, holding no.653 was recorded in Major Settlement ROR (Ext.2) published in the year 1970 in the name of Dhoba Barik, son of Saradhakar Barik and his nephew Ayodhya Barik, son of Chandramani Barik. Dhoba Barik and Chandramani Barik are two sons of Saradhakar Barik who is son of Mukunda Barik. It is furthermore not in dispute that the draft ROR (Ext.3) was published during the year 1920-25 in the name of Saradhakar Barik in respect of Plot No.1107, Khunti No.131 of an extent of Ac.0.63 decimals as “NUTAN ABADA”. According to the appellants, Dhoba Barik and Ayodhya Barik stepped into the shoes of Saradhakar Barik in respect of land as incorporated in Ext.3 and Major Settlement ROR Plot No.1618 corresponds to Hamid Settlement Plot No.1107 as per Ext.2. According to the plaintiffs, the suit land was originally, “GOCHAR” being recorded in Dewar Settlement vide ROR Ext.1 vide plot No.1008 under “GOCHAR” Khata; it was part of total an extent of Ac.9.30 decimals. It is not disputed that Damodar Dash and Brundaban Dash were recorded in respect of that “GOCHAR” KHATA BEING Maufidars, Ext.3 revealed that land to an extent to Ac.0.63 decimals pertaining to Plot No.1107 recorded in the name of Saradhakar Barik that land being re-claimed and acquired by him as agricultural lands from that erstwhile Page 10 of 15 {{ 11 }} “GOCHAR”. It is therefore incorporated in column-1 against plot no.1107 as “NUTAN ABADA”. It is not disputed by the contesting defendants that Hamid Settlement Plot No.1107 corresponds to Major Settlement Plot No.1618 which originally part of Plot No.1008 of Dewar Settlement. These corresponding number from Dewar Settlement of 1904 till Major Settlement of 1970 is not the bone of contention between the parties as reveals from their respective pleadings and evidence. 9. It is also not in dispute as pleaded in para-11 of the written statement in Title Suit No.23 of 1992 and para-14 in the written statement of the Title Suit No.100 of 1992 filed by the defendants that maufidar of Bargarh were the proprietor of Maufidaris of all class of lands situated in the village Bargarh except what had acquired by authorities; the right and status of the Maufidars were duly accepted and recognized by different authorities. It is not the bone of contention of the plaintiffs that in Partition Case N0.2/2 of 1917-18 of the Court of S.D.O., Bargarh dated 24.1.1920 Maufidar Krupasindhu Dash was allotted to an extent of Ac.3.23 decimals of such Maufidary land pertaining to Dewar Settlement Plot No.1008 by his co-maufidars; accordingly, Maufidar Krupasindhu Dash was in Khas possession and he continued in such possession till 21.7.1923 when he executed a registered gift deed (Ext.A and B) in respect of that Ac.3.23 decimals pertaining to Dewar Settlement Plot No.1008 out of the toal extent Ac.9.30 in favour of defendant No.1 and since then defendant no.1 is in enjoyment and continued to enjoy that property gifted in its favour. Ext.E is the certified copy of Basti Jama Bandi recorded in the name of Krupasindhu Dash Maufidar in respect of Ac.3.23 which land was allotted in his favour and which land he gifted in Page 11 of 15 {{ 12 }} favour of defendant no.1. It was provided with new plot No.1008/1. It is relied on the contesting defendants and not assailed by the plaintiffs. It relates to the year 1918-19. Apparently on the basis of this Ext.E, on 21.7.1923 said Krupasindhu Dash gifted that land through Ext.A in favour of defendant no.1. It is not disputed by the plaintiffs. Similarly Ext.G is the copy of Dewar Settlement ROR Plot Index of village Bargarh. It revealed that an extent of Ac.9.30 decimals of “GOCHAR” land pertaining to Plot No.1008 was recorded in the name of Maufidar Damodar Dash and others. Out of this Ac.9.30 decimals Krupasindhu Dash was allotted an extent of Ac.3.23 decimals which was provided with new plot No.1008/1 (Ext.E). All such material evidence brought on record are admitted factual matrix. Similarly, Ext.H is Dewar Settlement ROR in respect of Khunti No.198 recorded in the name of Damodar Dash and Brundaban Dash where name of “Mukunda Barik” father of “Saradhakar Barik” is being recorded as the “KRUSHAKA”, who apparently was in physical cultivating possession in respect of that Maufi land found during Dewar Settlement of the year 1905. Publication of Dewar Settlement ROR in respect of Khunti No.198 of village Bargarh (Ext.H) is not assailed by the defendants, it being relied on by that party. Admittedly, Mukunda Barik who is father of Saradhakar Barik was being recorded as the “agriculturist” in respect of that holding to an extent of Ac.8.20 decimals. It was published sometime after 1904. Apparently when the draft ROR of H.S. was published some time in 1922-25 Mukunda Barik was not alive for which that draft ROR was published in the name of Saradhakar Barik son of Mukunda Barik. It is manifest from Ext.3. The extent of lands Page 12 of 15 {{ 13 }} pertaining to 7 Khasadas had been incorporated in Ext.3 where plot No.1107 has been shown as “NUTAN ABADA”. This plot was not found mentioned in Ext.H. It is therefore manifest that this land was re-claimed subsequent to the publication of Ext.H. It is the case of the plaintiffs that Saradhakar Barik had re-claimed that land which is apparently from “GOCHAR” under the occupation of the Maufidar who are in control of all lands in Maufi village Bargarh at the relevant time. This publication of draft record of rights in the name of Saradhakar Barik during the year 1920-22 has not assailed by the Maufidars, he being apparently in khas possession having stepped into shoes of his father Mukunda Barik in respect of the lands incorporated in Ext.H and having acquired that Ac.0.63 decimals in respect of new Plot No.1107. It is not disputed that during the publication of final record of rights under Major Settlement Saradhakar Barik and one of his son, namely, Chandramani Barik his surviving son were not alive for which Ext.2 was published in the name of Dhoba Barik and, his nephew Ayodhya Barik. Ext.6 is the draft ROR in respect of the suit plot. It shows that Hamid Settlement Plot No.1107 to an extent of Ac.0.64 decimals corresponds to major Settlement Plot No.1618 to an extent of Ac.0.63 decimals, it is not assailed by the defendants.” Pursuant to the above order, the report of the Civil Court Commissioner has been received and the learned Counsels for the parties had gone through the same. 11. The Appeals have been admitted to answer the following substantial question of law:- Page 13 of 15 {{ 14 }} “Whether the First Appellate Court has fallen in error by not holding that the Major Settlement Plot No.1618 measuring Ac.0.64 decimals corresponds to Hamid Settlement Plot No.1107 measuring Ac.0.63 decimals which corresponds to the land under Plot No.1008/1 of Dewar Settlement extending to an area by Krupasindhu Dash in favour of Defendant-Gopal Goshala vide, Ext.A?” 12. Both the sides did not prefer to file any objection nor in course of hearing pointed out anything that the report was not in terms of the order dated 06.09.2022 or contains any such basic infirmities. In view of above, this Court when found the report to be strictly in terms of the order and very clear, the said report was admitted as additional evidence and marked Ext.X to which the learned Counsels did not raise any note of dissent. 13. A reading being given to Ext.X, it appears that the Civil Court Commissioner has undertaken the exercise as directed in presence of the parties. The relevant records of different settlement operations as well as the maps have also been verified by the Commissioner. 14. I have carefully gone through the said report. The Commissioner has undertaken the exercise following the direction in letter and spirit and keeping in view the very question which was put before him for being answered after due measurement in the field with reference to the relevant records of the different settlements and on super-imposition of Page 14 of 15 {{ 15 }} the maps has submitted the report (Ext.X). In fact, said question has been very well quoted in the said report and the answer is pin pointed. The conclusion ultimately has been the following:- “Hence, by taking measurement, by doing super-imposition process by the help of fixed point with N.H.6 in eastern side and road in western side and making plotting of major settlement plots of equalizing the scales, I came into conclusion that Major Settlement Plot No.1618-measuring Ac.0.64 dec. correspond to Mr. Hamid Settlement Plot No.1107-Ac.0.63 dec. which is correspond to the land under plot No.1008/1 of Dewar Settlement extending to an area of Ac.3.23 covered under the deed of gift executed by Krupasindhu Dash (Gountia) in favour of Gopal Goshala (D.No.1) vide Ext.A”. With above position in the field, which goes undisputed; keeping in view the rival case of the parties; the substantial question of law finds its answer against the case/claim of the Plaintiffs and for that reason, the conclusion of the First Appellate Court and the judgment and decrees passed in the First Appeals cannot sustain. 15.
Arguments
Sri Gopal Goshala, Bargarh has no right, title, interest and possession over the same and they instigated some tenants to deny the title of the Plaintiffs in respect of the suit land. It is also stated that the Defendant Nos. 2 to 7 of Title Suit No.100 of 1992 are not the tenants of Defendant No.1. It is alleged that taking advantage of the absence of Bhikari for a temporary period, Defendants constructed shop rooms on the vacant lands which was used as passage to go to the rest of the suit lands and they thus blocked the entrance of the same. 6. The Defendants in their written statements have stated that Saradhakar Barik was not the owner of the suit land and they do not know if Dhoba and Chandramani were the two sons of Saradhakar Barik and that Ajodhya Barik had succeeded to the interest of Chandramani Barik. They denied the recording of the suit land in the name of Dhoba Barik and Ayodhya Barik in the Major Settlement record. They stated that even if such recording is there, it is erroneous and has not conferred Page 5 of 15 {{ 6 }} title in respect of the suit land in their favour. They also denied the factum of partition of the land in suit with other lands between Dhoba and Ayodhya and that the suit land had fallen to the share of Dhoba Barik, who possessed the same. It is also stated that Bhikari had not built any house over the suit land and they had never tried to disposing him from the suit land. It is the case of the Defendants that the suit land was Mafi land of one Krupasindhu Dash, who had got the same in his share in Recall Partition Case No.2/2 of 1917-1918. The plot number of the suit land in Dewar Settlement was 1008. On 21.07.19923, said Krupasindhu had gifted the suit land to the Defendant (Gopal Goshala, Bargarh), which was taking care of the disabled cows. It is stated that the Defendant- Goshala is in exclusive possession of the suit land with other lands laying adjoining thereto in a compact area. The Defendant had constructed several shop rooms on the suit land on its eastern side and let out the same to different persons and with the rent collected therefrom, the expenses for running the Goshala is met. It has been stated that the Goshala is in open, peaceful, long and continuous possession of the suit land from 21.07.1923. As some of the tenants defaulted in payment of rents, so vacant possession of those shop rooms were demanded. When one tenant-Omprakash vacated the possession of Page 6 of 15 {{ 7 }} the room under his occupation, the another tenant, Wahid Khan did not vacate. So, the Defendant-Goshala had filed a proceeding for eviction of the said tenant under the provision of Orissa House Rent Control Act, which was then in force. The proceeding i.e. HRC Case No.01 of 1986was decreed by the House Rent Controller. The Defendant-Goshala took delivery of possession of the said shop room in occupation of the tenant-Wahid Khan in Execution Case No.10 of 1987. Thereafter, the Defendant-Goshala reconstructed that room with the permission of the Bargarh Municipality. The construction was however stopped by temporary injunction. They stated that the Plaintiffs have no right, title and interest over the suit land. 7. On the above rival pleadings, the Trial Court framed as many as twelve (12) issued. Answering issue no.1 as to the ownership of the suit land, whether it was with Saradhakar Barik or Krupasindhu Dash, upon examination of their evidence and their evaluation answer has been given by the Trial Court that Krupasindhu had right, title and possession over the suit land in the year, 1920 and prior to Hamid Settlement. Then coming to decide the issue nos. 2 and 3, which also concern with the competing title advanced by the parties over the suit land, the Trial Court answered the same against the Plaintiffs. It has been held that the Plaintiffs have no right and title over the suit land on the strength of the gift executed in its favour by Krupasindhu. Practically, the above Page 7 of 15 {{ 8 }} findings led the Trial Court to dismiss both the suits in further concluding that the Plaintiffs have not proved that they were in possession of the suit land prior to the institution of the suit. 8. 9. The Plaintiffs thus being non-suited carried the first Appeals. The First Appellate Court has first of all held as under:- “10. Thus on a cumulative assessment of documentary and oral
Decision
In the result, the Appeals stand allowed. There shall however, no order as to cost is passed. The judgment and decree passed by the First Appellate Court being set aside; those passed by the Trial Court in dismissing the suits are hereby restored. Narayan (D. Dash), Judge. Page 15 of 15