The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.29 of 1995 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Bipra Charan Bisoi Patitapaban Panda Appeared in this case:- -versus- …. …. Appellant Respondent For Appellant For Respondent : : Mr. P.V. Balakrishna, Advocate Mr. B. Sahoo, Advocate Appeared in this case:- CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 06.02.2024 / date of judgment :21.03.2024 A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment. 2. The appellant of this 2nd appeal was the sole plaintiff before the trial court in the suit vide T.S. No.15 of 1989 and he was the respondent before the 1st appellate court in the 1st appeal vide T.A. No.15 of 1994. 3. The respondent of this 2nd appeal was the defendant before the trial court in the suit vide T.S. No.15 of 1989 and he was the appellant before the 1st appellate court in the appeal vide T.A. No.15 of 1994. // 2 // 4.
Legal Reasoning
The suit of the plaintiff(who is the appellant in this 2nd appeal) before the trial in the suit vide T.S. No.15 of 1989 against the defendant(who is the respondent in this 2nd appeal) was a suit for permanent as well as mandatory injunction. 5. The case of the plaintiff against the defendant before the trial court was that, the suit property is Plot No.779/ 2013 ‘Gharabari’ H0.008R under Khata No.307/55. According to the plaintiff, one Krushna Chandra Mahapatra of village Gumagarh was the sole owner of the suit Plot No.779 for an area H0.010R under Khata No.43 in Mouza Gumagarh and the said property was recorded in his name exclusively in the settlement and as such, Krushna Chandra Mahapatra being the exclusive owner of the Plot No.779 under Khata No.43, he was possessing the same exclusively. That, Krushna Chandra Mahapatra sold the suit land, i.e., H0.008R out of H0.010R to the plaintiff by executing and registering a sale deed on dated 28.07.1987 bearing Sale Deed No.196 and delivered possession thereof. Subsequent thereto, the suit land was demarcated by the Amin, on which, the plaintiff laid foundation work for construction of a house. After transferring the suit land to the plaintiff, his vendor, i.e., Krushna Chandra Mahapatra filed a mutation case before the Tahasildar- Kandhamal for mutation of the suit land in favour of the plaintiff and accordingly, the Tahasildar-Kandhamal mutated the suit properties to the name of the plaintiff and after mutation, the suit properties were recorded // 3 // in separate Khata vide Khata No.307/55 and Plot No.779/2013 in the name of the plaintiff exclusively and as such, the plaintiff has been paying the rent of the suit properties to the Government in his name regularly and he (plaintiff) has been obtaining the rent receipts thereof. The defendant is a rowdy nature man and he(defendant) requested plaintiff for selling the suit properties to him. When the plaintiff did not accept the said proposal of the defendant to sale the suit properties, then, the defendant forcibly started installing Medha fence around the suit land, to which, the plaintiff protested, for which, the defendant tried to assault him (plaintiff). Accordingly, the defendant without having his any right, title and interest over the suit properties created disturbances in the possession of the plaintiff over the suit properties, for which, apprehending the breach of peace, he (plaintiff) filed the suit vide T.S. No.15 of 1989 against the defendant praying for restraining the defendant permanently from interfering into his possession over the suit properties and for removing of the medha fence from the suit land along with other relief (s) to which, he (plaintiff) is entitled for, as the court deems fit and proper. 6. Having been noticed from the trial court in the suit vide T.S. No.15 of 1989 filed by the plaintiff, the defendant contested the same, denying the averments made by the plaintiff in his plaint by taking specific stands/pleas in his written statement that, he(defendant) has got his own // 4 // plots vide Plot No.780 under Khata No.13 in Mouaza Gumagarh measuring an area of H0.032R. He (defendant) had/has been possessing the suit properties since 1950 as a rightful owner by constructing a house thereon. The vendor of the plaintiff, i.e. Krushna Chandra Mahapatra had never objected his possession over the suit properties at any point of time. An Encroachment Case Bearing No.1/65 was started against him by the Tahasildar-Kandhamal(Phulbani). Neither the plaintiff nor his vendor has got any right, title, interest and possession over the suit properties. He (defendant) is residing over the suit properties by constructing a house and latrine and keeping some portions thereof vacant for using the same as bari by encircling the entire properties by fence. After the so-called purchase of the suit properties, he(plaintiff) had never demarcated the same through Amin. Rather, he(plaintiff) is laying false claim against him(plaintiff). The properties described in the schedule of the point, as suit properties are the part and parcel of Plot No.780, but, the same are not the part and parcel of Plot No.779/2013. Inside the suit properties, the house and latrine of the defendant are situated since 1950. The so-called vendor of the plaintiff, i.e. Krushna Chandra Mahapatra has neither executed any sale deed in favour of the plaintiff nor he has got the land described in the schedule of the plaint. The possession of the suit properties has never been given to the plaintiff by his vendor Krushna Chandra Mahapatra. He (defendant) was not made a party in the mutation // 5 // case. Therefore, the order of mutation is not finding on him (defendant) and as such, his title and possession over the suit properties have never passed from him to the plaintiff through mutation. The so-called vendor of the plaintiff, i.e., Krushna Chandra Mahapatra had no right, title, interest and possession over the suit properties and he had also no right to sell the suit properties to the plaintiff. Because, he (defendant) has right, title and possession over the suit properties. He(defendant) has never approached the plaintiff at any point of time for selling the suit properties. The plaintiff is wanting to grab the suit properties from him(defendant) by filing the suit. But, he (defendant) was/is in continuous possession over the suit properties since 1950 openly and to the knowledge of the vendor of the plaintiff and as such, he (defendant) has perfected his title, over the suit properties through adverse possession. Therefore, there is no cause of action for the plaintiff to file the suit against him(defendant). He (defendant) has not installed medha fence around the suit properties. As the so-called vendor of the plaintiff has not been impleaded as a party in the suit filed by the plaintiff, for which, suit of the plaintiff is bad for non-joinder of necessary party. So, the suit of the plaintiff is liable to be dismissed against him(defendant) with cost. // 6 // 7. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether three numbers of issues were framed by the trial court in the suit vide T.S. No.15 of 1989 and the said issues are:- 1. 2. I S S U E S Is the suit is maintainable? Has the plaintiff got right, title and possession over the suit land? 3. Any other relief, to which, the plaintiff is entitled to? 8. In order to substantiate the aforesaid relief(s) sought for by the plaintiff in the suit vide T.S. No.15 of 1989 against the defendant, he (plaintiff) examined three witnesses from his side including him and his vendor Krushna Chandra Mahapatra as P.Ws.1 and 3 and relied upon the documents vide Exts.1 to 3. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendant examined two witnesses from his side including him as D.W.1 and relied upon a document vide Ext.A. 9. 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 favour of the plaintiff and against the defendants, the trial court // 7 // decreed the suit of the plaintiff vide T.S. No.15 of 1989 on contest against the defendant and restrained the defendant permanently from coming over the suit land as per its judgment and decree dated 29.06.1991 and 24.07.1991 respectively assigning the reasons that, the plaintiff has purchased the suit properties from its owner, i.e., Krushna Chandra Mohapatra as per Sale Deed No.196 dated 28.07.1987 vide Ext.1 and since the date of purchase, he(plaintiff) has been possessing the suit properties being the exclusive owner thereof and the suit properties have been recorded in his name exclusively as per the RoR vide Ext.2 and he(plaintiff) has been paying rent of the suit properties in his name to the Government regularly. Therefore, it is held by the trial court that, he (plaintiff) is in possession over the suit properties since the date of his purchase, i.e., since 28.07.1987 being the exclusive owner thereof, but, though the defendant is claiming his ownership over the suit properties stating about his possession on the same since the year 1950, but, due to lack of any material in favour of the defendant to prove his title and possession over the suit properties, he (defendant) has failed to prove his any interest in the suit properties. Therefore, the plaintiff is entitled for the decree of permanent injunction in respect of the suit properties against the defendant being the exclusive owner and in possession thereof. // 8 // 10. On being dissatisfied with the aforesaid judgment and decree dated 29.06.1991 and 24.07.1991 respectively passed by the trial court in the suit vide T.S. No.15 of 1989 in favour of the plaintiff and against the defendant injuncting the defendant permanently from coming over the suit properties, he(defendant) challenged the same by preferring the 1st appeal vide T.A. No.15 of 1994 being the appellant against the plaintiff by arraying him (plaintiff) as respondent. 11. After hearing from both the sides, the 1st appellate court allowed the 1st appeal vide T.A. No.15 of 1994 of the defendant on contest against the plaintiff and set aside the judgment and decree passed by the trial court in the suit vide T.S. No.15 of 1989 and dismissed that suit vide T.S. No.15.1989 of the plaintiff against the defendant as per its judgment and decree dated 07.10.1994 and 28.10.1994 respectively relying upon the report of the Amin Commissioner vide Ext.3 assigning the reasons that, as per the report of the Amin Commissioner vide Ext.3, large chunk of the suit plot is under the possession of the defendant, for which, the trial court ought to have refused the prayer of injunction of the plaintiff on that ground alone. 12. On being aggrieved with the aforesaid judgment and decree dated 07.10.1994 and 28.10.1994 respectively passed by the 1st appellate court in T.A. No.15 of 1994 in favour of the defendant and against the plaintiff in dismissing the suit of the plaintiff vide T.S. No.15 of 1989, he // 9 // (plaintiff) challenged the same by preferring this 2nd appeal being the appellant against the defendant by arraying him(defendant) as respondent. 13. This 2nd appeal was admitted on formulation of the following sole substantial question of law, i.e., “Whether the 1st appellate court is justified in law in rejecting the entire suit, when Ext.3, the report of the Amin Commissioner vide Ext.3 relates to a portion of the suit land?” 14. I have already heard from the learned counsels for the appellant and the respondent separately. 15. The 1st appellate court has reversed the judgment and decree of the trial court, i.e., the decree of permanent injunction in favour of the plaintiff against the defendant only by relying upon the report of Amin Commissioner vide Ext.3 relating to the possession of the parties over the suit properties. 16. It appears from the record as well as from the submissions of the leaned counsels of both the sides that, the Amin Commissioner, who had submitted the report vide Ext.3 has not been examined as a witness during the trial of the suit either from the side of the parties or at the instance of the trial court as a court witness. // 10 // His report has been marked as Ext.3 as per the Order No.75 dated 08.05.1991 of the trial court in the suit vide T.S. No.15 of 1989. 17. It appears from the Order No.39 dated 05.01.1990 of the trial court in T.S. No.15 of 1989 that, in the petition, the plaintiff had prayed for deputing a survey knowing commissioner to inspect and demarcate the disputed plot. The said prayer of the plaintiff for deputation of a survey knowing commissioner to inspect and demarcate the dispute plot was allowed by the trial court. As such, the Amin Commissioner was appointed by the trial court only to inspect and demarcate the disputed plot, but, that Amin Commissioner was not appointed/deputed to give any finding regarding the possession of the parties over the suit plot. For which, the report of the Amin Commissioner vide Ext.3 concerning the possession of the parties over the suit plot is beyond his authority. Because, he was not deputed to state about the possession of the parties over the suit plot. 18. It is the settled propositions of law that, a Amin Commissioner cannot be appointed to ascertain the possession of the parties over the suit properties. Because, as per law, An Amin Commissioner cannot be appointed/deputed to collect evidence concerning the possession of the parties over the suit properties. As such, the Amin Commissioner has no authority to collect evidence at the spot and to give any observation in his report about the possession of the parties over the suit properties on // 11 // the basis of the evidence collected by him from the local witnesses. The report of the Amin Commissioner regarding possession of the parties in the suit plot amounts to collection of evidence. Because, without collecting evidence from the local witnesses, an Amin Commissioner cannot state about the possession of the parties over the suit properties. Therefore, the report of the Amin Commissioner vide Ext.3 in this suit at hand, is outside the scope of his warrant/direction/deputation made by the trial court in the suit vide T.S. No.15 of 1989. For which, the report of the Amin Commissioner vide Ext.3 regarding the possession of the parties over the suit plot is discarded being inadmissible under law. 19. That apart, the contents of the report of an Amin Commissioner without his examination as a witness are not admissible in evidence. 20. On the above aspects, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:-
Legal Reasoning
(i) 2009(2) Civil Court Cases-421(P&H) : Vijay Kumar vrs. Ishri Devi—CPC, 1908—Order 26, Rule 9—Local Commissioner cannot be appointed to ascertain as to, who is in possession. (ii) 2012(2) Law Digital in 057 Bombay—Syed Moshtaque Ahmad and others vrs. Syed Asique Ali Khan—CPC, 1908— Order 26, Rule 9—Court Commissioner—Appointment of— Collection of evidence—Court Commissioner directed to report on the aspect of the possession and to the extent of construction carried out by the respondent—Held, it would amount to collect the evidence, which is not permissible as per Order 26, Rule 9 of the CPC. // 12 // shop found locked-Report (iii) 2010(Suppl.) Civil Court Cases-851(P&H) : Kuldip Chan vrs. Kishori Lal—CPC, 1908—Order 26, Rule 10— Local Commissioner of Commissioner cannot be used for the purpose other than the physical examination, whether the shop was closed or not— Commissioner did not have any authority to collect evidence at the spot and the observations in the report that, local witnesses said that, the shop had remained close for long, cannot be used for any purpose, since they were outside the scope of the warrant.—Except physical verification report of Local Commissioner, the report about the closure of shop for long discarded. (iv) 2011(7) Law Digital in 070—Kerala : Bhaskaran vrs. Shobha and others—CPC, 1908—Order 26, Rule 9 read with Order 39 Rules 1 and 2 read with specific relief Act, 1963— Section 8. Ex parte report of local commissioner—Evidentiary value—Suit injunction—Advocate permanent Commissioner, who prepared report after spot inspection not examined—Held such report is not admissible in evidence— Such a report, at the most could be considered only for the purpose of passing orders of interlocutory applications for interim relief— It cannot form basis to pass decree for injunction in the suit. for 2022(3) Apex Court Judgments-786(S.C.) : M.P. Rajya (v) Tilhan Utpadak Sahakari Sangh Maryadit, Pachama, District Sehore and others vrs. Modi Transport Service—CPC, 1908—Order 26, Rule 9—Report of Commissioner— Commissioner reports are not adjudicatory in nature to adjudicate rights of the parties. Commissioner report is only an opinion with details and/or to the court of the actual states of affairs. 21. On application of the propositions of law enunciated in the ratio of the aforesaid decisions of the Hon’ble Courts and Apex Court to the suit/appeal at hand, it is held that, when the report of the Amin Commissioner vide Ext.3 concerning the possession of the parties over the suit properties is without authority being outside the scope of his warrant/deputation and when the Amin Commissioner has not been examined as a witness during the trial of the suit before the trial court to // 13 // prove the contents of his report and when, as per law, the report of the Commissioner vide Ext.3 is not adjudicatory in nature in the suit, then, at this juncture, the report of the Amin Commissioner vide Ext.3 concerning the possession of the parties over the suit properties has become inadmissible under law. For which, that report vide Ext.3 is to be discarded/excluded from the zone of consideration. 22. Therefore, the findings and observations made by the 1st appellate court reversing the judgment and decree passed by the trial court only on the basis of the report of the Amin Commissioner vide Ext.3 cannot be sustainable under law. Because, for the reasons assigned above, the report of the Amin Commissioner vide Ext.3 cannot and shall not be taken into the zone of consideration by any court in a suit for giving any final findings in the judgment regarding the possession of the parties over the suit properties. 23. It is established that, the suit Plot No.779/2013 under Khata No.307/55 corresponds to previous Plot No.779 under Khata No.43 and Krushna Chandra Mohapatra was the owner of the Plot No.779 under Khata No.43. The said Krushna Chandra Mohapatra sold the suit properties to the plaintiff by executing and registering a sale deed bearing No.196 dated 28.07.1987 vide Ext.1. The suit properties has also been mutated to the name of the plaintiff and separate RoR vide Ext.2 // 14 // has already been prepared in his name. He(plaintiff) has been paying rent for the same to the Government regularly. 24. When, the plaintiff has claimed his exclusive possession over the suit properties on the basis of the sale deed vide Ext.1, RoR vide Ext.2 along with the rent receipts and when his vendor Krushna Chandra Mohapatra(P.W.3) has fully corroborated the same and when, the defendant is disputing/denying the title and possession of the plaintiff on the same without any document, but only through adverse possession claiming his possession over the suit properties since the year 1950 as per his pleadings made in paragraphs-7 and 12 of his written statement and when, it is the settled propositions of law that, claim of title over the suit properties by the defendant through adverse possession itself, is an indirect admission of the ownership of the plaintiff on the same, then at this juncture, the aforesaid documents vide Exts.1 and 2 along with the rent receipts in favour of the plaintiff and the plea of adverse possession of the defendant are favourising to the pleadings of the plaintiff concerning his possession over the suit properties. 25. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decisions:- a. 2005(3) CCC-167(Madras) : Pappayammal. vrs. Palanisamy and others.—A party can plead adverse possession only when he admits that, another party has got title. // 15 // b. 2005(4) Civil Law Times-378(P&H) : Sultan and others vrs. Kasturi and others—Plea of adverse possession indirect admission of ownership of plaintiff.(para-8) is c. 2008(3) CCC-173(P&H) : Jagatsingh and others vrs. Srikishan Dass and others—Once a plea of adverse possession is raised, it pre-supposes the title of the plaintiff over the suit land. 26. It is very fundamental in civil law that, possession of suit land is a main consideration while considering the relief, i.e., permanent injuction. Here this suit at hand, when by taking the plea of adverse possession over the suit properties against the plaintiff, the defendant has indirectly admitted the title of the plaintiff over the suit properties and when the undisputed documents in favour of the plaintiff, i.e., sale deed vide Ext.1, RoR vide Ext.2 along with rent receipts coupled with admissions regarding sale of the suit properties to the plaintiff by its admitted owner Krushna Chandra Mohapatra(P.W.3) are providing a high degree of probability to the possession of the plaintiff over the suit properties, then at this juncture, the judgment and decree passed by the trial court in the suit vide T.S. No.15 of 1989 in favour of the plaintiff and against the defendant restraining the defendant permanently from coming over the suit land cannot be held as unreasonable or erroneous under law. For which, the 1st appellate court should not have set aside to the judgment and decree passed by the trial court in T.S. No.15 of 1989 in favour of the plaintiff and against the defendant by interfering with the same through its judgment and decree passed in T.A. No.15 of 1994 only // 16 // on the basis of an inadmissible document vide Ext.3 concerning the possession. As per discussions and observations made above, the judgment and decree passed by the 1st appellate court on the basis of an inadmissible evidence vide Ext.3 cannot be sustainable under law, for which, there is justification under law for making interference with the same through this 2nd appeal filed by the appellant(plaintiff). Therefore, there is merit in this 2nd appeal of the appellant(plaintiff). The same must succeed. 27. In the result, the 2nd appeal filed by the appellant(plaintiff) is allowed on contest, but without cost. 28. The judgment and decree dated 07.10.1994 and 24.10.1994 respectively passed by the 1st appellate court in T.A. No.15 of 1994 are set aside. The judgment and decree dated 29.06.1991 and 30.07. respectively passed by the trial court in T.S. No.15 of 1989 are confirmed/maintained/upheld. Judge Orissa High Court, Cuttack The 21st of March, 2024/ Jagabandhu, P.A.& Binayak Sahoo, Jr. Steno ( A.C. Behera ) Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: PA Reason: Authentication Location: OHC, CUTTACK Date: 21-Mar-2024 14:10:57