Civil Suit No. 20 of 2003 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.206 of 2016 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 25th February, 2016 and 14th March, 2016 respectively passed by the learned Additional District Judge, Rayagada in R.F.A. No.38 of 2011 setting aside the judgment dated 31st October, 2011 passed by the learned Civil Judge (Senior Division), Rayagada in Civil Suit No.20 of 2003. ---- Indira Priya Darsini Mahila Sangh, represented by its President, New Colony, Rayagada -versus- …. Appellant Gunnam Ramakrishna, Visakhapatnam …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - M/s.P.K. Khuntia, G.N.Padhi and M.M.Padhi (Advocates) For Respondents - Mr.G.S.Namtoar & R.N.Singh (Advocate through Caveat)
Legal Reasoning
CORAM: MR. JUSTICE D.DASH Date of Hearing :21.09.2023 : Date of Judgment:29.09.2023 D.Dash,J. The Appellant, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), has RSA No.206 of 2016 Page 1 of 12 {{ 2 }} assailed the judgment and decree dated 25th February, 2016 and 14th March, 2016 respectively passed by the learned Additional District Judge, Rayagada in R.F.A. No.38 of 2011. The Respondent, as the Plaintiff, has filed Civil Suit No.20 of 2003 in the Court of the learned Civil Judge, Senior Division, Rayagada. The suit was with the prayer to declare the Respondent (Plaintiff) to be the absolute owner of the immovable property described in the schedule of the plaint and issuance of permanent injunction restraining the Appellant (Defendant), their men and agents from interfering with the peaceful possession and enjoyment of the suit land by the Respondent (Plaintiff). The suit, having been dismissed, the Respondent (Plaintiff) had carried the Appeal under section 96 of the Code. The First Appellate Court, having decreed the suit filed by the Respondent (Plaintiff) by upsetting the judgment and decree passed by the Trial Court, the present Second Appeal has come to be filed. 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 Suit. 3. Plaintiffs’ case is that he is the absolute owner of the suit property described in schedule of the plaint, which was his ancestral property. It is stated that his right over the property was confirmed by the judgment and decree passed in T.S. No.33 of RSA No.206 of 2016 Page 2 of 12 {{ 3 }} 1994 of the Court of the learned Civil Judge, Senior Division, Rayagada. That was a suit filed by the Respondent (Plaintiff) against his co-sharers for declaration that there had been previous partition of their joint family property in terms of what had been described in that plaint and in that suit, the subject matter of the present suit was described property involved in the present suit was described in schedule-E of that plaint and the Plaintiff’s right, title and interest over the property had been declared. Accordingly, he continued to possess and enjoy the same. It is stated that the Plaintiff, with an intention to develop the property that had fallen to his share, had approached the Special Planning Authority (S.P.A.), Rayagada seeking approval of the layout plan and accordingly, that layout plan was approved by the said Authority in its proceeding vide R.S.P.A. No.804 dated 28.09.1984. The Plaintiff had submitted a well defined layout and has accordingly sold some of the plots. The Respondent (Defendant) had purchased the land under Plot No.126/3/1640 by registered sale deed dated 23.01.1995. He was also delivered with the possession of the said land with specific boundaries. It is further stated that in the year 2000, when the Plaintiff came to Rayagada from Visakhapatnam where he was then staying for the purpose of his business, to his utter surprise, he found that the Defendant, having no right, title and interest over the suit property, was illegally attempting to RSA No.206 of 2016 Page 3 of 12 {{ 4 }} encroach the same. The Plaintiff claims that the suit property, which had been kept reserved by him as open space being examined to be delivered to the Rayagada Municipality. The Plaintiff, however, claims that later on, he, having delivered a different property to the Rayagada Municipality, had retained the suit property and as such, he has been continuing to be the owner of the suit property. The Plaintiff, having served notice upon the the Defendant to fix the boundaries of his purchased land, when in response could smell that he was in a mood to encroach the suit property, the suit came to be filed. 4. The Defendant, while traversing the plaint averments, has asserted that the Plaintiff has no right, title, interest and possession over the suit property. He has averred to have constructed a boundary wall, a rest shed as well as bore-well over the suit land for last eight years. It is also said by the Defendant that he had planted some fruit bearing trees over the suit land. So, it is said that the allegation that the Defendant was attempting to encroach the suit land is not correct. It is also stated that the Plaintiff has never objected to all said acts of the Defendant. It has been further averred that the ancestors of the Plaintiff were rich landlords of Rayagada and the suit of the year 1994 was collusive one to defeat the ceiling law. It is stated that the Plaintiff has not RSA No.206 of 2016 Page 4 of 12 {{ 5 }} acquired valid title and absolute ownership over the suit property by virtue of the judgment and decree passed in T.S. 33 of 1994. The suit property was meant for public purpose for the use of the pubic as open space to be maintained by Rayagada Municipality and that had been approved by the S.P.A., Rayagada. So, it is said that the Plaintiff has no subsisting right over the suit land. The subsequent arrangement with the Rayagada Municipality in the year 2000 by way of exchange of another land, as has been pleaded by the Plaintiff is attacked as having no legal sanctity. It is said that the land in the suit was kept as open space for the Municipality to maintain and the Plaintiff is estopped from making any further arrangement with the Municipality as per his own convenience, which is neither indicated nor binding. 5. The Trial Court, on the above rival pleadings, has framed as many as six issues. Taking up issue no.iv, which concerns with the right, title, interest and possession over the suit land by the Plaintiff, the Trial Court, upon examination of the evidence and their evaluation, had returned the finding as against the exclusive claim of the Plaintiff. It has been held that the suit land should be kept open for use of public purpose and it cannot be used by any single individual including the Plaintiff. RSA No.206 of 2016 Page 5 of 12 {{ 6 }} Having said as above, it has also been held that the Defendant has no right to occupy and use the suit land and he, having purchased the nearby land from the Plaintiff in the year 1995, even if it is said that he has been possessing the suit land since then, he has acquired no right, title and interest over the same and has no right to possess the same. Therefore, the possession of the Defendant has been found to be illegal and contrary to the intention of the Plaintiff. The suit land, having been gifted by the Plaintiff in favour of Rayagada Municipality by the deed (Ext.10) for public purpose as the Plaintiff has no subsisting right, title and interest over the suit property, the suit, at his instance, claiming the reliefs, has been dismissed. 6. The Plaintiff, being non-suited by the Trial court, in the First Appeal, the following order has been passed:- “The Appeal be and the same allowed on contest but without any cost. The impugned judgment and decree of the learned lower Court is hereby set aside and the suit of the plaintiff is decreed.” 7. The present Appeal has been admitted to answer the following substantial question of law:- “(i) Whether the lower appellate court is right in refusing to permit the defendant to adduce additional evidence, when those touch the root of the case?; RSA No.206 of 2016 Page 6 of 12 {{ 7 }} (ii) Whether the suit, as laid for the reliefs claimed ought to have been held liable for dismissal for non- joinder of Municipality, Special Planning Authority and the purchasers of plots und er the plotted scheme, when according to the case of the defendant, the land in question under the scheme is for the enjoyment of the committee?; and (iii) Whether the plaintiff is liable to be non-suited in view of the gift of the suit land made by him in favour of the Municipality, Ext. 10?” 8. Heard Mr.P.K.Khuntia, learned counsel for the Appellant (Defendant) and Mr.G.S.Namtoar, learned counsel for the Respondent (Plaintiff) at length. 9. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the rival pleadings and the evidence both oral and documentary let in the parties. 10. Relying upon the resolution of the Rayagada Municipality (Ext.8), has found that the land in suit, which had originally been gifted by the Plaintiff in favour of the Municipality and had been shown in the layout plan (Ext.7) approved by the T.P.A., Rayagada, the First Appellate Court has said that the Trial Court, in concluding that the suit land should be kept open for public purpose and use and it cannot be used by any single individual including the Plaintiff and thus, the Plaintiff is not entitled for RSA No.206 of 2016 Page 7 of 12 {{ 8 }} recovery of possession in respect of the suit land has not applied its judicial mind. It has further been held by the First Appellate Court that the Trial Court has erroneously held that Smt. D. Bhaktapriay and Sri P. Puneya had gifted the land shown in the gift deed in favour of the Rayagada Municipality. The Trial Court had not accepted the case of the Plaintiff that he had gifted another land to the Municipality in exchange of the suit land, the First Appellate Court has gone to explain the same by saying that since the Plaintiff had no land at Village-Jayaramguda to offer open space to the Municipality, he had approached his aunt and uncle to gift the same and for that, he had paid compensation to them and, therefore, said deed of gift (Ext.11), being taken into account, as Rayagada Municipality had passed the resolution by overriding previous deed of gift (Ext.10), the Trial Court’s view is not correct. The above view taken by the First Appellate Court has ultimately influenced the final decision in the Appeal and the Plaintiff’s suit has been decreed without mentioning the entitlement of the relief/reliefs without following the mandate as contained in Order 41 Rule 312(d) of the Code so as to be incorporated in the decree and thus committing grave error. 11. In order to find out the answers to the substantial questions of law in simultaneously addressing the rival submission of the RSA No.206 of 2016 Page 8 of 12 {{ 9 }} learned counsel for the parties, some admitted factual settings are required to be noted. The Plaintiff, with an intention to develop the property, as required under the law had placed the layout plan before the Authority. The layout plan, being approved, the Plaintiff has sold plots of the land to different persons including one to the Defendant. The Plaintiff then had executed deed of gift vide Ext.10 donating the suit land to the Rayagada Municipality. However, the Plaintiff by asserting in a general manner to be the undisputed owner of Schedule-E property and as such to be continuing to possess has specifically as pleaded under:- illegally and high handedly attempting “It is submitted that the plaintiff for his business interests would be staying at Visakhapatnam and later during the year 2000 when the plaintiff had been to Rayagada to his shock observed that the defendant which had no right or title over the plaint schedule had been to encroach into the plaint schedule property in the absence and without the knowledge of the plaintiff. In facts the suit schedule property was reserved by the plaintiff as a mandatory open space to be delivered to the Municipality but the same was retained by the plaintiff and delivered a different property to the Rayagada Municipality. As such, the plaintiff is continuing to be the owner of the plaint schedule property.” In view of such pleading of the Plaintiff, the evidence let in by him that he, through his relation, having gifted away another RSA No.206 of 2016 Page 9 of 12 {{ 10 }} piece of land to the Municipality, had reobtained the suit property unto himself, which has been recognized by the Municipality in its resolution ought not to have been looked into. The First Appellate Court has completely erred in law in accepting said case of the Plaintiff by pointing all such explanations for the Plaintiff. As per the averment made in the plaint, the Plaintiff, having once in the layout plan shown, the suit land to be the open space for the other plot owners to enjoy and for its maintenance having gifted the same to the Municipality in owning the same, the Plaintiff had/has nothing to claim over that property again. The gift once, having been accepted by the Municipality, by subsequent the gifted property having gone to the hands of the Municipality by a resolution that the Plaintiff is redelivered with the possession of the same, in view of the gift of some other lands belonging to some of his relations to the Municipality, is not permissible in the eye of law to say that the title over the suit property has reverted back to the Plaintiff. In the wake of aforesaid, the substantial questions of law find their answers against the claim of the Plaintiff, which in turn, lead to set aside the judgment and decree passed by the First Appellate Court and restore the judgment and decree passed by the Trial Court. RSA No.206 of 2016 Page 10 of 12 {{ 11 }} 12. In the result, the Appeal stands allowed. The suit filed by the Plaintiff claiming the reliefs as aforesaid stands dismissed without cost. While parting, it is felt pertinent to observe that the suit property, being the property of Rayagada Municipality in view of the admitted position that the Defendant is an encroacher in respect of the said property, which has been meant for being kept as open space for public purpose and use, it would be open for the Rayagada Municipality to take all such steps, as provided in law for restoration of the said property to its status as it was before such encroachment by the Defendant by removing the encroachments over the same as claimed to have been made by the Defendant and as per the layout plan and maintain the same for which it had been meant as per the gift. This Court hopes and trusts that Rayagada Municipality would rise to the occasion in doing the needful in safeguarding the public property. Copy of this judgment be forwarded to the Principal Secretary to Government in Housing and Urban Development Department; and Director, Municipal Administration to direct the Executive Officer, Rayagada Municipality to proceed further in the matter in the light of the observation made hereinabove. To arrest the delay, three free copies of this judgment be supplied to Mr.Sukumar Ghose, learned Additional Government Advocate for their onward transmission to the Principal Secretary to RSA No.206 of 2016 Page 11 of 12 {{ 12 }} Government in Housing and Urban Development Department, Director, Municipal Administration and Executive Officer, Rayagada Municipality for necessary action at their end followed by intimation to this Court about the actions taken on or before 1st November, 2023. (D. Dash), Judge. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 03-Oct-2023 16:09:04 RSA No.206 of 2016 Page 12 of 12