Civil Suit No. 02 of 2006 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.369 OF 2017 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 26.07.2017 and 28.8.2017 respectively passed by the learned 1st Additional District Judge, Sambalpur in R.F.A. No.24/08 of 2010-2016 confirming the judgment and decree dated 20.08.2010 & 02.09.2010 respectively passed by the learned Civil Judge, (Junior Division), Rairakhol in Civil Suit No. 02 of 2006. ---- Hrusikesh Dehury & Another …. Appellants -versus- Chandramani Pradhan & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr. Mr. G. N. Mishra, (Advocate). For Respondents - Mr. S. Panda, (Advocate for R-1 to 4) CORAM: MR. JUSTICE D.DASH Date of Hearing : 26.09.2023 :: Date of Judgment: 09.10.2023 D.Dash,J. The Appellants, by filing this Appeal under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment and decree dated 26.07.2017 and 08.08.2017 respectively passed by the learned 1st Additional District Judge, Sambalpur in R.F.A. No.24/08 of 2010-2016. RSA No.369 of 2017 Page 1 of 12 {{ 2 }}
Legal Reasoning
The Appellants as the Plaintiffs had filed the suit for declaration of their right, title, interest and confirmation of possession over the suit land as described in Schedule-A of the plaint with the alternative prayer that in case of their dispossession by the Defendants, there be a decree for recovery of possession of the suit land from the Defendants, with further prayer for issuance of permanent injunction and declaration that the note of possession o the suit land as finds mention in Hal Khatian in favour of Late Madan Mohan Pradhan is erroneous; and that be deleted. The suit having been dismissed, the Appellants being non- suited had carried Appeal under section-96 of the Code. The First Appellate Court has finally dismissed the Appeal. Therefore, the judgment and decree passed by the Trial Court in non-suiting the Appellants (Plaintiffs) in the suit filed by them against the Respondents (Defendants) claiming the relief (s) as aforestated have been confirmed in the First Appeal. 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. Plaintiffs case is that they are the recorded owners of the Schedule-A land. One Pareswar Dehury died leaving behind Sambaru RSA No.369 of 2017 Page 2 of 12 {{ 3 }} Dehury, the father of the Plaintiff Nos. 1 and 2, Sukadeb Dehury, father of Plaintiff No.3 and Karunakar Dehury, father of Defendant No.4. In the last settlement operation, wherein the record of right was published in the year, 1985, the suit land was recorded in the name of the Plaintiffs and they have been paying land revenue to the State regularly. The Plaintiffs claim to have been using the suit land as their threshing floor. Since the neighbours of the Plaintiffs raised some dispute with regard to the area of the suit land and other adjacent lands, the Plaintiff Nos.1 on 10.05.2001 filed an application before the Tahasildar, Rairakhol for demarcation. Pursuant to the order passed therein on 11.05.2001, the Revenue Inspector (R.I.) when went to the field, he was not allowed by the Defendants for making the measurement and go for demarcation. Thus apprehending the breach of piece, the Plaintiff No.1 reported the matter to the local Police Station. The Defendant No.1 then stated before the local Police that in the remark column of the Hal ROR, possession of one Madan Mohan Pradhan is noted which was not known to the Plaintiffs and they came to know about the same for the first time which is not at all the fact. In view of the apprehension of serious breach of peace, finally a proceeding under section-145 of the Cr.P.C. was initiated before the Sub-Divisional Magistrate, Rairakhol, which was numbered as RSA No.369 of 2017 Page 3 of 12 {{ 4 }} Criminal Misc. Case No.78 of 2001. The Plaintiff No.1 were the first party; whereas the Defendants were the members of the second party therein. On 16.11.2001, preliminary order was passed and it was followed by an order of attachment of the suit land, appointing the local R.I. as the receiver. The Defendants being the second party members then filed an application for recall the order of attachment of the suit land and that being rejected on 29.10.2002, they carried a Revision. Said Criminal Revision No.59/58 of 2002-2004 was allowed and thereby, the order of attachment was vacated. Thereafter, the suit came to be filed. The Plaintiffs also stated that in the year, 1996 that Madan Mohan had sold all the lands in village Batogaon and went away to village Tebud and he is dead since 1998. It is stated that neither Madan Mohan nor the Defendants have ever possessed the suit land. The Defendants belong to the family of Ex-Sarbarakar of the village whereas the Plaintiff No.1 is a cultivator. The Defendants being educated persons and influential have managed to get the name of Madan noted in the remarks column of the Hal ROR to be in forcible possession of the suit land behind the back of the Plaintiffs. According to the Plaintiffs, such noting in the ROR as regards forcible possession in respect of the suit land by said Madan Mohan Pradhan is absolutely RSA No.369 of 2017 Page 4 of 12 {{ 5 }} valueless. Since by such act of the Defendants, the clear title and possession of the Plaintiffs over the suit land came under the clouds, the suit came to be filed; when the Defendant did not agree to move the Tahasil for correction of the wrong noting in the Khatian. 4. The Defendants in their written statement while traversing the plaint averments has specifically pleaded that the grandfather of the Plaintiff Nos.1 and 2 namely, Pareswar Dehury died leaving behind Sambaru, Sukadeb, Karunakar, Tulasa, Saree, Ujala, Durga and Chandra Dehury and out of them except Karunakar (Plaintiff No.4) all are dead but their legal heirs are very much alive. Sambaru died leaving behind his widow, Suhagi and sons namely, Hrusikesh (Plaintiff No.1), Ram Chandra (Plaintiff No.2) and daughter namely, Gouri, Urmila, Budhei and Kuni. It is further stated that Sukadeb died leaving behind his widow, Surubali and sons Judhisthir (Plaintiff No.3), Ramesh and daughters namely, Nala, Duhita, Chhaturi and Tempa. Their further case is that since only Hrusikesh, Ramesh, Judhisthir, Karunakar have filed the suit without joining, the other co- sharers as aforesaid in seeking the relief in respect of the suit land; the suit being bad for non-joinder of necessary party is liable to be dismissed. They also stated that the Hrusikesh (Plaintiff No.1) without taking the consent of other Plaintiffs (Plaintiff Nos. 2 to 4) have filed RSA No.369 of 2017 Page 5 of 12 {{ 6 }} the suit on their behalf, which is impermissible. Although, it is stated that on an application of Plaintiff No.1, the Tahasildar had directed to local R.I. to demarcate the suit land, since the Defendants have been using the suit land as their threshing floor and cowshed situated in the premises of their house, they did not allow the R.I. to demarcate. Thereafter, the plaintiff No.1 had reported the matter to the local Police. In a proceeding under section-145 of the Cr.P.C. was initiated and in that proceeding, the Sub-Divisional Magistrate having passed an order of attachment by passing preliminary order of initiation of the proceeding under section-145 of the Cr.P.C.; that was ultimately set aside by the Revisional Court as the Defendants (second party members) were in possession of the same and not the Plaintiff No.1 (first party). They stated that the Plaintiffs have no right, title and interest over the suit land. It was also stated that suit land was not in physical possession of one Madan Mohan Pradhan, when the recorded right was published in the year, 1985 and therefore, the Settlement Authority had rightly noted the possession as per the field position. It is further stated that Madan Mohan Pradhan while possessing the suit land had handed over the possession over the suit land to these Defendants and accordingly, they are in possession of the suit land and perfected their right, title and interest by way of adverse RSA No.369 of 2017 Page 6 of 12 {{ 7 }} possession. They also pleaded that the suit land was a sallow land and sometime in the year, 1945, late Narayan Pradhan, the great grandfather of the Defendants constructed a cowshed and making part of it as threshing floor believing the said land to be belonging to the Government possessed the same. It is further stated that Utchhaba Pradhan and Satyabadi Pradhan were two sons of Narayan Pradhan. At the time partition which took place in the year 1958, that Satyabadi got the suit land as his share and he possessed the same. After his death, Madan Mohan came to possess the same having a cowshed and threshing floor over there. The Khanapuri Settlement of Major Settlement was held in the year, 1982 and during then, Madan Mohan was very much in physical possession of the suit land for which the note of possession stood in his favour. The Defendants further state that during Bijharat map on 28.11.1984, the Plaintiffs filed a petition before the Settlement Authority very much objecting to such note of possession in relation to the suit land in favour of Madan Mohan and that was registered, an Objection Case No.236 of 1984. The Amin report being called for, it came in favour of the possession of the said land by Madan Mohan and that report was signed by the Plaintiff No.1 and therefore, subsequently the Settlement Authority on 21.03.1984 in presence of RSA No.369 of 2017 Page 7 of 12 {{ 8 }} Plaintiff No.1, passed the final order maintaining that note of possession of Madan Mohan in respect of the suit land in the remark column of the record of right. The Plaintiffs having not carried any further proceeding in challenging said entry in the ROR and when thereafter the Defendants having come to possess the suit land being so noted in favour of Madan Mohan, they have perfected the title by way of adverse possession and thus have the subsisting right, title and interest over the suit land. They further pleaded that one Gopal Pradhan is the son of Utchhab Pradhan and they (Defendants) are the sons of Late Gopal Pradhan. Satyabadi Pradhan is the father of Madan Mohan and brother of Utchhab. When Madan Mohan left the village, at the request of the Defendants out of sympathy, he delivered possession of the suit plot to them. According to them, Madan Mohan was possessing the suit plot since 1940 to May, 1996. Thereafter, the Defendants are possessing the same till filing of the suit. 5. On the above rival pleadings, the Trial Court has framed as many as seven (7) issues. Having taken up issue no.3, which is in relation to the non-joinder of necessary party, on going through the evidence in the backdrop of the rival pleadings the Trial Court has answered the same against the Plaintiffs in holding that the suit is bad for non-joinder of necessary party and as such is liable to be RSA No.369 of 2017 Page 8 of 12 {{ 9 }} dismissed. Then going to decide the other issues as to the limitation that has also been answered against the Plaintiffs. 6. The Trial Court sitting over to render the decision on issue no.5 with regard to identification has found the description of the suit land given in the plaint as not sufficient to identify the suit land. Thus it has also been found that there was no cause of action to file the suit. Finally, keeping in view the evidence as Plaintiff No.2 (P.W.2) that he had not put signature on the plaint and was not aware about the averments taken therein, the suit has been dismissed. 7. The Plaintiffs thus being unsuccessful before the Trial Court as their suit was dismissed in entirety had carried First Appeal under section-96 of the Code. That Appeal has also been dismissed. Therefore, they have filed the present Second Appeal. 8. The Appeal has been admitted to answer the following substantial questions of law:- (1) Whether the concurrent finding of the Courts below that the suit land as described and in respect of which the plaintiffs have claimed all the reliefs is not identifiable to pass an effective decree suffers from the vice of perversity and as such is liable to be set aside? (2) Whether the Courts below are right in holding that the suit is bad for non-joinder of necessary party namely, the legal heirs and successors of Madan Mohan Pradhan, RSA No.369 of 2017 Page 9 of 12 {{ 10 }} despite the fact that the Plaintiffs have advanced no relief in the suit as against them and the decree as prayed for by the Plaintiffs even if is passed would not bind them? (3) Whether the Courts below are right in holding that the suit is barred by limitation?” 9. Learned Counsel for the Appellants (Plaintiffs) submitted that Courts below have made a very narrow approach in ruling upon the issue of identification of the suit land without keeping the rival case of the parties in view. He submitted that when the Defendants advanced their competing claim of acquisition of right, title, interest and possession over the suit land as shown in the plaint, the Courts below ought not to have given much of emphasis to the non-identification of the suit land being not so provided with the boundaries and the sketch map. He further submitted that when the Plaintiffs are not claiming any relief against the legal heirs or successors of Madan Mohan and the Defendants claim to have been delivered with the possession of the suit land by that Madan Mohan to them and as such to be in possession of the suit land, it could not have been said that the suit is bad for non-joinder of necessary party. He lastly submitted that title of the Plaintiffs over the suit land having been established since the Defendants have failed to prove their competing claim of acquisition of title over the suit land by virtue of adverse possession since the time of Madan Mohan Pradhan, the suit should not have been RSA No.369 of 2017 Page 10 of 12 {{ 11 }} dismissed on the ground of limitation by simply looking at the date of publication of the record of right and the note of possession of Madan Mohan as indicated therein. 10. 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 as placed. 11. Proceeding to address, the rival submissions centering the first substantial question of law, it is seen from the plaint that the suit land is said to be covering an extent of Ac.0.03 decimals from plot no.2348 and Ac.0.04 decimals from plot no.2349, which stands assigned with Hal Khata No.174 of mouza: Batogaon. The Hal record of right has been admitted in evidence and marked Ext.1; wherein the area of plot no.2348 is indicated as Ac.0.13 decimals. It is not indicated by the Plaintiffs by providing any map up to the scale that which portion of the land under plot no.2348 to the extent of Ac.0.03 decimals is in dispute and even no such rough sketch map is given indicating the portion, upon which the Plaintiffs stake their claim and seek the reliefs. The above description of the suit land is clearly found to be not in adherence to the provision contained in Order-7, Rule-3 of the Code. Furthermore, when the area of both the plots as find mention in the record of right comes to Ac.0.017 decimals, the suit land in total is RSA No.369 of 2017 Page 11 of 12 {{ 12 }} Ac.0.07 decimals. Both these plots adjoin one another. Therefore, with such described property which is said to be the suit land and over which the Plaintiffs claim the reliefs as aforestated even on acceptance of the claim of the Plaintiffs and rejection of the competing claim of the Defendants, this Court is of the view that no effective decree could be passed so as to be duly executable in the field. In that view of the matter, the answer to the first substantial question of law stands in affirmating the concurrent findings of the Courts below as no such infirmity much less to say any perversity surfaces therefrom. The first above substantial question being thus answered as above; since that is enough to non-suit the Plaintiffs and that runs in confirming the judgments and decrees passed by the Courts below; this Court feels no further necessity to proceed to answer the other substantial question of law, which would be of mere academic importance serving no useful purpose of this lis. 12.
Decision
In the result, the Appeal stands dismissed. However, there shall be no order as to cost. (D. Dash), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 18-Oct-2023 11:00:35 RSA No.369 of 2017 Page 12 of 12