Civil Suit No. 02 of 2015 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.334 OF 2016 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 06.05.2016 and 16.05.2016 respectively passed by the learned District Judge, Bargarh in R.F.A. No.56 of 2015 setting aside the judgment and decree passed by the learned Nyayadhikari, Gram Nyayalaya, Attabira in Civil Suit No.02 of 2015. ---- Madhu Sudan Barik & Others …. Appellants -versus- Kuber Barik & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - For Respondents -
Legal Reasoning
CORAM: MR. JUSTICE D.DASH Mr. S. Nayak, D.N. Pattnaik, P.K. Khuntia, U.K. Mohapatra, (Advocates). -------------- Date of Hearing : 20.11.2023 :: Date of Judgment:04.12.2023 D.Dash,J. The Appellants, by filing this Appeal under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has assailed the judgment and decree dated 06.05.2016 and 16.05.2016 respectively passed by the learned District Judge, Bargarh in R.F.A. No.56 of 2015. The Appellants as the Plaintiffs had filed Civil Suit No. 02 of 2015 in the Court of the Nyayadhikari, Gram Nyayalaya, Attabira seeking RSA No.334 of 2016 Page 1 of 7 {{ 2 }} declaration of the suit land as road having the rights of the parties to use the same for ingress and egress to their houses with further prayer of issuance of permanent injunction against the Respondents (Defendants) from interfering in the use of said land as road in any manner. The suit being decreed in part by granting the decree of permanent injunction as prayed for, the Respondents being the aggrieved Defendants had carried Appeal under section-96 of the Code. The First Appeal has been allowed and thus the suit filed by these Appellants as the Plaintiffs has been dismissed in entirety. Hence, this Second Appeal is at the instance of the Appellants, who are the non-suited Plaintiffs. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Trial Court. 3. The Plaintiff’s case is that the parties are the descendants of the common ancestors. It is stated that suit land under two plots in total measuring Ac.0.18 decimals, better described in Schedule-A of the plaint has been under the use of the parties as road since time immemorial. It is stated that there was no road other than the road on the suit land for ingress and egress to the houses of the inhabitants of the Bariktikira for which there was longstanding dispute between the parties. RSA No.334 of 2016 Page 2 of 7 {{ 3 }} It is stated that the kisam of the land is ‘Rasta’ and it is being used as road by the inhabitants of the Bariktikira of village Bulampur, which is seen from the Amin report prepared in the Partition Case No.28 and from the L.R. Khata No.296. The Consolidation Authority in the finally published map have shown the hamlet of Bariktikira as Basti Chawk bearing Plot No.3502, 3505 and 3503 which were road inside the Basti and there was a road on Plot No.3460, 3519, 3511, 3516 and 3447 which connected the village road which was also recorded as ‘Rasta’ kisam in the name of Bisikeshan Barik, Goutam Barik and others. It is stated that the suit plots i.e. Plot No.3447, 3511 with kisam ‘Rasta’ had been recorded in the name of Trilochan Barik. On sometime in the month of January, 2011 and thereafter on 30.10.2011, when the Defendants closed the road running over the land under Plot No.3447 and 3511, Criminal Misc. Case No.211 of 2011 was initiated before the Executive Magistrate, Attabira; wherein restraint order had been passed and thereafter the suit came to be filed. 4. The Defendants while traversing the averments made in the plaint have stated that one Sankarsan Barik had two sons Bhola and Hira of village Dulampur, Bariktikira. They were recorded tenants of Hamid Settlement (H.S.) Holding No.126 and that Schedule-A land under Holding No.311 was recorded in the name of Trilochan Barik as per the RSA No.334 of 2016 Page 3 of 7 {{ 4 }} final ROR published in the Consolidation operation in the year 1995, which corresponds to M.S. Plot No.2999 under Holding No.314, which was recorded in the name of the family members of the Defendants with kisam Patita and the corresponding H.S. Plot No.2218. It is stated that Defendants raised crops over Schedule-A land and at times, they use it as road. 5. The Trial Court has held that when the land is recorded in the name of the Defendants the prayer to declare Schedule-A land as road is not convincing. Having said so, the Trial Court has taken a view that the Defendants are required to be injuncted from causing any kind of obstruction to the public and the Plaintiffs in using A Schedule land as road. 6. The Defendants having suffered from above judgment and part decree passed by the Trial Court had carried the First Appeal. The First Appellate Court on appreciation of evidence let in by the parties has held that private land simply being recorded as Rasta does not entitle outsiders to claim easement until and unless it is reasonably proved and established in terms of the provision contained in section-15 of the Easement Act. Thus, taking a view that the Plaintiffs have failed to establish their case/ claim over the property in suit, the First Appeal has been allowed and the Plaintiffs have been non-suited. RSA No.334 of 2016 Page 4 of 7 {{ 5 }} 7. Learned Counsel for the Appellants submitted that the First Appellate Court is not justified in making out a third case on its own by going to hold that the Plaintiffs have not established their case/ claim in terms of the provisions contained in the Easement Act. According to him, the case/claim of the Plaintiff on the basis of the available evidence ought to have been allowed to the extent in passing the decree of permanent injunction in restraining the Defendants in causing obstruction for using the suit land as road. He, therefore, urged for admission of this Appeal to answer the above as the substantial question of law. 8. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement filed by the parties as well as the evidence, both oral and documentary, let in by them. 9. When the Plaintiffs in the suit have advanced the prayer of declaration of their right, of using the suit land as road by stating that they have been so using since long prior to the institution of the suit, when the suit land does not stand recorded in their name, it is incumbent upon them to establish that as to how they have acquired the right to use the said land as road and as such to exercise the right of easement over the same. In order to establish such right as required under section-15 of the Easement Act, the Plaintiffs are under the legal obligation to establish that RSA No.334 of 2016 Page 5 of 7 {{ 6 }} such right is exercised peaceably, uninterruptedly and within the knowledge of the whole world, for about 20 years, ending the periods within 02 years next preceding the institution of the suit. The admitted position is that the suit land stands recorded in the name of the predecessors-in-interest of the Defendants vide Ext.5. The Defendants have proved the major settlement, consolidation record of rights besides the order of the Deputy Director, Consolidation of Holding in Appeal Case No.74 of 1983 as Exts.A, D and C respectively. The suit schedule land appertaining to L.R. Plot No.4611 besides other lands were the subject matter of the Appeal case and there the exclusive right, title and interest of the predecessors-in-interest of the Defendants have been upheld. That order under Ext.C has not been challenged. The very recording of the suit land under Ext.5 with kisam ‘Rasta’ however does not itself make out the claim of the Plaintiffs of having the right of easement over the same. Plaintiff No.1 having examined as P.W.1 has stated that the Defendants have grown vegetable / paddy over the suit schedule land. When the land is under cultivation and that is being admitted by none other than P.W.1 who is claiming the right of easement over the suit land, said statement of the Plaintiffs cut their case at its very root. The report of the Tahasildar, proved by the Plaintiff as Ext.11 indicates that another RSA No.334 of 2016 Page 6 of 7 {{ 7 }} connecting road is used by the localities. This itself runs counter to the claim of the Plaintiffs that the suit land is the only passage egress and ingress to the main road from the hamlet. 10. In view of all these basic infirmities in the case/ claim of the Plaintiffs, the First Appellate Court appears to have rightly rectified the gross mistake committed by the Trial Court and accordingly, the First Appellate Court having dismissed the suit is found to have committed no error either on facts or law. For the aforesaid, the submission of the learned Counsel for the Appellants (Plaintiffs) that there arises substantial question of law as pointed out above for being answered, meriting admission of this Appeal is not accepted. 11.
Decision
In the result, the Appeal stands dismissed. However, there shall be no order as to cost. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: PERSONAL ASSISTANT Reason: Authentication Location: OHC Date: 12-Dec-2023 15:08:35 RSA No.334 of 2016 (D. Dash), Judge. Page 7 of 7