Civil Suit No. 137 of 2013 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. Nos.86 & 87 of 2020 In the matter of Appeals under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 25.02.2020 & 29.02.2020 respectively passed by the learned Additional District Judge, Koraput in R.F.A. No.01 of 2018 setting aside the judgment and decree dated 29.01.2018 & 05.02.2018 respectively passed by the learned Civil Judge, Senior Division in Civil Suit No.137 of 2013. Puvvala Nageswar Rao (In both RSAs) ---- -versus- …. Appellant Talent College of Science & Technology & Another (In both RSAs) …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Ms.Deepali Mohapatra, (Advocate in both RSAs) For Respondents - Mr.G.Mukherji, (Sr.Advocate for R.1 in both RSAs) Mr.T.Mishra (Advocate for R.2 in both RSAs) CORAM: MR. JUSTICE D.DASH Date of Hearing : 08.11.2023 : Date of Judgment: 04.12.2023 D.Dash,J. Since the Appellant, by filing both these Appeals, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), has challenged the common judgment dated 25.02.2020 followed by the decree dated 29.02.2020 passed by the learned Additional District Judge, Koraput in R.F.A. No.01 of 2018 and RFA No.02 of 2018 which had been filed by the Respondent No.1 and Respondent No.2 who had been arraigned as R.S.A. Nos.86 & 87 of 2020 Page 1 of 9 {{ 2 }}
Legal Reasoning
Defendant No.1 and 2 in the Trial Court in challenging the judgment and decree passed in Civil Suit No.137 of 2013 by the learned Civil Judge, Senior Division, Koraput, which had been filed by the present Appellant as the Plaintiff; those were heard together for their disposal by this common judgment. The present Appellant as the Plaintiff had filed the suit seeking declaration of his right, title, interest over the suit land and confirmation of possession followed by a decree of permanent injunction against the Defendants from interfering in the possession of the suit land. The suit having been decreed, the Respondent No.1 & 2 (Defendant Nos.1 & 2) had carried two separate Appeals under section 96 of the Code. Those two first Appeals having been allowed, now the Appellant being the non-suited Plaintiff has filed these two Appeals. 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. Plaintiff’s case is that the land better described in Schedule ‘A’ of the plaint stood recorded in the name of his father, namely, Pydithalli, who was in possession of the same. The Plaintiff claims to be in possession of the said land after the death of his father as its exclusive owner. The Defendant No.1 purchased a piece of land measuring Ac 3.00 cent in Mouza Monabar, which is situated just behind the land described in Schedule ‘A’ in Mouza Kumbha- II. The Defendant No.1 constructed a bridge over a drain which is the dividing line of the land of the Plaintiff and Defendant No.1 and started transporting the building material through the middle portion of the land of the Plaintiff without his consent. As the Plaintiff was residing outside the District of Koraput being intimated by his friends, he came over to Koraput Page 2 of 9 R.S.A. Nos.86 & 87 of 2020 {{ 3 }} and objected to such high handedness of the Defendant No.1. The Defendant No.1 then claimed that the land belongs to the Defendant No.2, (Koraput Municipality). The Defendant No.1 threatened the Plaintiff to construct a road over the suit land linking to the road running from Boriguma to Koraput. It is further stated that the Defendant No.2 went for selling application forms for allotment of the shop rooms for commercial purpose which was to be constructed over different portions of the land belonging to the Plaintiff in front of the purchased land of the Defendant No.1. The Plaintiff then made enquiry and found that the Defendants in order to grab the property of the Plaintiff were attempting to tress pass over the same. The Defendant No.1 thereafter started to dump earth and sands over the land of the Plaintiff for lying a road on the northern side; that is from the road running from Boriguma to Koraput of width of about 10 feet up to the southern side drain and length of about 345 feet, which has been described in Schedule ‘B’ of the plaint. The Plaintiff, therefore, was compelled to file the suit. 4. The Defendant No.1 in the written statement while traversing the plaint averments has stated that the Plaintiff is not the owner the suit land and was never in possession of the suit land at any given point of time. It is stated that the Defendant No.1 purchased the land measuring Ac 3.00 cent in Monabar mouza which is adjacent to the canal/drain behind the suit land covered under plot no.427 of mouza Kumbha-II. That is said to be belonging to the Notified Area Council, Koraput (as was previously). The Defendant No.1 after verification from the nearby owner including his vendor, came to know that they have been using the land in Schedule ‘B’ by constructing a temporary wooden bridge over the canal/drain. It is further stated that as the road is less than 20 feet of width, the Defendant No.1 in public interest Page 3 of 9 R.S.A. Nos.86 & 87 of 2020 {{ 4 }} requested Defendant No.2 for widening of the said road to 20 feet width and the Defendant No.2 accordingly, widened the road giving due regard and weightage to the easementary right of the Defendant No.1 over the land under Schedule ‘B’. 5. The Defendant No.2 in their written statement stated that by virtue of an order passed in Mutation Case No.184 of 1966, the record of right of Schedule ‘A’ land had been prepared in the name of Union Board later on becoming Koraput NAC, which has now been Koraput Municipality. The Defendant No.2 states that they have the right, title and interest over Schedule ‘A’ land and all the nearby land owners have been using Schedule ‘B’ land by constructing temporary bridge/over the ‘Nala’ as the only bridge road to their respective lands and the inhabitants of the locality are also using Schedule ‘B’ land as the only connecting passage to the public road, which runs from Koraput to Boriguma. It is further stated that the Plaintiff by playing fraud in the office of the Tahasildar has been able to obtain the certified copy of the Record of Right in relation to the land under plot no.427 under mouza Kumbha-II before the same was corrected in the record of the concerned Revenue Inspector in terms of the order passed in Mutation Case No.184/1966. 6. The Trial Court, on the above rival pleadings, has framed as many as 6 issues. 7. The crucial issues are issue nos.(ii) & (iii), which run as under:- “ii). Whether the plaintiff or defendant no.2 have got right, title, interest & possession over the suit land?; and iii) Whether the plaintiff is entitled to the relief of permanent injection against the defendants?” R.S.A. Nos.86 & 87 of 2020 Page 4 of 9 {{ 5 }} 8. The Trial Court, on examination of evidence both oral and documentary and their evaluation, has answered that the Plaintiff has got right, title, interest over the suit land and thus is entitled to the relief claimed. Next deciding the fourth issue as regards the easementary right claimed by Defendant No.1 over Schedule ‘B’ land, from evidence, it having been found that the user of the said land as road, even if accepted since has not been continuing for the required period to acquire the easementary right by virtue of Section 15 of the Easementary Act, the Defendant No.1’s claim is not tenable. Accordingly, the Trial Court decreed the suit. 9. The Defendant No.1 and 2 having filed two separate Appeals have been successful in setting aside the judgment and decree passed by the Trial Court and these two Second Appeals are thus at the instance of the unsuccessful Plaintiff. 10. The Appeals have been admitted to answer the following substantial question of law. “a. Whether the ROR under Ext.A prepared in 1971 in the name of Defendant-Respondent no.2-Koraput Municipality, Koraput has overriding effect over Ext.3 prepared in the name of the father of appellant in the year, 1953?; b. Whether the initial burden of proof has been discharged by the Plaintiff-Appellant by proving the flow of title through registered sale deed under Ext.1 and the ROR published under Ext.3? and c. Whether the view of Ext.3 the onus lies on the Defendant to prove its flow of title over the suit land and publication of the ROR under Ext.A” 11. Learned counsel for the Appellant submitted that the Plaintiff having proved that the land in question had been purchased by his father by registered sale deed (Ext.1) dated 21.06.1943 and consequent thereupon, the Page 5 of 9 R.S.A. Nos.86 & 87 of 2020 {{ 6 }} land had been recorded in the name of the father of the Plaintiff vide Ext.3, when the so called mutation order giving rise to mutation ROR Ext.A published of the year 1966, is not shown to be with any strong factual or legal basis for the Defendant No.2 in laying any claim over the said property and thus it being not so established, the First Appellate Court ought to have wholly ignored Ext.A and merely basing upon the same, the Plaintiff’s suit could not have been dismissed. She further submitted that when the source for passing of the mutation order has not been established, the First Appellate Court has gone wrong in holding that the same gives rise to a presumption that the title over the suit land rests with the Defendant No.2 and, therefore, in view of uninterrupted possession of the land by the Defendant No.2 for about 50 years therefrom, it would not have been held that the Defendant No.2 having remained in uninterrupted possession of the suit land for 50 (fifty) years, the Plaintiff’s suit is liable to be dismissed.
Legal Reasoning
12. Learned counsel for the Respondent No.2 (Defendant No.2) submitted all in favour of the view taken by the First Appellate Court. He contended that indisputably, the said land having been recorded in the name of Defendant No.2 by an order passed in a mutation proceeding initiated in the year 1966 and that having remained unchallenged, the First Appellate Court has rightly drawn the presumption of title over the suit land in favour of the Defendant No.2 and therefrom the possession of the suit land being found to be resting with Defendant No.2, the suit of the Plaintiff has been rightly dismissed. 13. Learned counsel for the Respondent No.1 (Defendant No.1) submitted that the Plaintiff’s father having purchased the land way back in the year 1943 has sold away the entire purchased land. He submitted that the Plaintiff thus having no further land of his own, the Plaintiff has been falsely staking Page 6 of 9 R.S.A. Nos.86 & 87 of 2020 {{ 7 }} his claim over the suit land. He submitted that the Defendant No.2 by a resolution dated 25.11.2013 (Ext.B) has authorized the Defendant No.2 to use to the land passage/road for ingress and egress to his own purchased land and in the facts and circumstances, the suit has been rightly dismissed. 14. 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 placed by the learned Counsel for the parties in course of hearing. 15. The Plaintiff’s case is that his father had purchased the suit land by registered sale deed on 21.06.1943. Pursuant to the said purchase, the suit land had been recorded in his favour vide Ext.3 in the year 1957. The First Appellate Court from these two documents proved from the side of the Plaintiff has rightly held that the presumption therefrom run that the father of the Plaintiff was the title holder of the land in the year 1957. It is stated by Defendant No.2 that the suit land in Schedule ‘B’ has been recorded in its favour by an order passed in the mutation case of the year 1966. That mutation order has however not been proved, nor the record of right pursuant to that mutation order, which has been admitted in evidence and marked Ext.A indicate as to on what basis, the land belonging to a private individual i.e. the father of the Plaintiff was taken away and recorded in the name of Defendant No.2. The Defendant No.2 is also not coming forward with any specific case to that effect as to how and for what reason/ground, the suit land was ordered to be mutated in its name and the mutated record of right Ext.A came to be prepared. It is not shown as to what was its claim for seeking such recording. Ext.A. does not reflect any indication whatsoever to that effect. The mistake list which is prepared in case of curving out of the land Page 7 of 9 R.S.A. Nos.86 & 87 of 2020 {{ 8 }} from one Khata to another being so assigned, by an order passed by the Mutation Authority clearly indicating the basis of such mutation and the consequential change in the record of right; that has also not been proved. 16. The settled position of law is that the mutation entry does not create the title in favour of the person so recorded or extinguish the title of the true owner. Thus viewing that Ext.A had come into being, it can neither be said as how the Defendant No.2 acquired the title over the suit land nor it be said that the Plaintiff lost the title over the suit land by that mutation recording. Furthermore, the Defendant No.2 being an Authority created under the statute is not coming forward to tender any sort of evidence that the said land being the land of the State, it come to be transferred to it, by virtue of any such order or Govt. notification. When the land is found to be owned by private individual i.e. father of the Plaintiff, which is neither denied nor disproved, the recording of the same in the name of Defendant No.2 without showing or proving any such basis for the same is nonest in the eye of law. Therefore, the First Appellate Court has erred in law by drawing a presumption therefrom that the title over the suit land was resting with the Defendant No.2 when the Plaintiff has pleaded and proved his title over the suit land. 17. The contention raised by the learned counsel for the Respondent No.1 (Defendant No.2) that the Plaintiff’s father and the Plaintiff sold the entire land being not the case presented in their written statement nor being shown through the evidence during the Trial, at this stage of Second Appeal, therefore, such a stand is not permissible to be raised for the first time in the defence. R.S.A. Nos.86 & 87 of 2020 Page 8 of 9 {{ 9 }} The Plaintiff thus having established his title over the suit land, it is seen that the Defendants have failed to show as to how that title of the Plaintiff over the suit land has stood extinguished. In that view of the matter, since the Defendant No.1’s case as to the acquisition of easementary right over the said land is not satisfying the legal requirements as the period in terms of the provision contained in section 15 of the Easement Act is not getting covered, the substantial questions of law stand answered in favour of the Plaintiff. Accordingly, the judgments and decrees passed in the First Appeals cannot be sustained. 18. In the result, the Appeals are allowed and in the peculiar facts and circumstances without cost. Consequently, the judgment and decree dated 25.02.2020 & 29.02.2020 respectively passed by the learned Additional District Judge, Koraput in R.F.A. No.01 of 2018, and RFA No.02 of 2018 being set aside, the Trial Court’s judgment and decree passed in C.S. No.137 of 2013 granting the reliefs to the Plaintiff are hereby restored. (D. Dash), Judge. Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 12-Dec-2023 13:57:18 R.S.A. Nos.86 & 87 of 2020 Page 9 of 9