The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.219 of 2019 In the matter of appeal under Section 100 of the Code of Civil Procedure assailing the judgment dated 15.05.2019 passed by the learned District Judge, Kendrapara, in R.F.A. No.34 of 2018 confirming the judgment and decree dated 22.06.2018 and 05.07.2018 respectively passed by the learned Senior Civil Judge, Kendrapra in C.S. No.164 of 2013. ---- Biranchi Narayan Mohapatra & Another …. Appellants -versus- Debaki Malik & Another …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.P.K. Rath-1 Advocate For Respondents - CORAM: JUSTICE D.DASH Date of Hearing :13.02.2023 : Date of Judgment:15.02.2023 D.Dash,J. The Appellants, in this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed judgment dated 15.05.2019 passed by the learned District Judge, Kendrapara, in R.F.A. No.34 of 2018. By the same, the Appeal filed by the present Appellants under section 96 of Code, in challenging the judgment and decree dated 22.06.2018 and 05.07.2018 respectively passed by the RSA No.219 of 2019 Page 1 of 7 {{ 2 }} learned Senior Civil Judge, Kendrapra in C.S. No.164 of 2013 has
Legal Reasoning
been dismissed. Thereby, these Appellants, as the Plaintiffs, have filed the suit for permanent injunction restraining the Respondents (Defendants) from dispossessing them from the suit land and creating any disturbance on the passage for their ingress and egress to their homestead plot, which had been dismissed by the Trial Court, 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. The Plaintiffs’ case is that the land under Hal Plot No.108 under Hal Khata No.92 of Village-Khandeita stood recorded in the name of Banchhanidhi Mohapatra and Dayanidhi Mohapatra, sons of Arat Mohapatra in the last major settlement record. Prior to the publication of the Hal Settlement record of right, the land under Khata No.92 had been partitioned between them in metes and bounds and they were in separate possession of their respective land as allotted in the partition. After the death of Banchhanidhi and Dayanidhi, their legal heirs and successors remained in possession of the land allotted to their ancestors. During settlement operation, the authorized agent of the Plaintiffs submitted documents before the Settlement Authority with regard to the partition of the landed properties between Banchhanidhi and Dayanidhi by metes and boudns. But the Settlement Authority jointly recorded the land under Khata No.92. The separate possession of co-sharers was, however, noted against each plot in the remarks column of the said record of right. Since the land under Hal Plot No.108 was under the RSA No.219 of 2019 Page 2 of 7 {{ 3 }} possession of the father of the Plaintiffs, he applied before the Tahasidlar for conversion of Ac.0.10 decimals of land out of Ac.0.33 decimals to homestead. The Tahasildar, in OLR Case No.19 of 2011 allowed the same. It has been stated that the land under Plot No.108/743 is situated in the revenue village of Khandeita and the approaching road to the said plot is situated towards the south appertaining to plot no.57 intervening by the Government land appertaining to Plot No.58. The land under Plot Nos.57 & 58 are situated in Village- Pandurikoli and the Plaintiffs have no other way to approach the village road from their plot no.108/743 without passing over the land under plot no.58. It is thus pleaded that the Plaintiffs have a natural right to approach the road from every point of their homestead land through the land under plot no.58, which is a piece of Government land. The Plaintiffs have no grievance against the Government. It is stated that the Plaintiffs, in order to construct a charitable hospital over their land under Plot No.108/743, moved the Tahasidlar for demarcation of the road to approach the public road over Plot No.57. The Tahasildar, after due enquiry, made necessary measurement and demarcation over the land under plot no.58 such user. The Defendants, however, without having any manner of right, title, interest and possession over the said land under plot no.58, made constructions of their houses over that Government land with an intention to create hindrance on the passage of the Plaintiffs. The suit, therefore, came to be filed. 4. The Defendants, appearing in the suit, filed the written statement. They state that one Gadadhar Malik was the inhabitant of Village-Pandurikoli and he is the husband of Defendant No.2. It is Page 3 of 7 RSA No.219 of 2019 {{ 4 }} stated that the house and homestead land of Gadadhar as also the houses of some of the neighbours, which were also washed away in the year 1985. They pleaded that the Tahasildar allotted Ac.0.04 decimals of homestead land to Gadadhar as well as other homeless persons way back in the year 1988 and the record of right was issued in favour of Gadadahr in Lease Case No.90 of 1985. It is further stated that as per the demarcation and delivery of possession of the land given by the Tahasil Amin, Gadadhar remained in possession of the land allotted in his favour and constructed his residential house over there. His neighbours have also constructed their respective houses. It is further stated that said Gadadhar being an illiterate person, however, could not get his name recorded in the record of right of the Hal Settlement operation in respect of the suit land. They state that they have no residential house of their own except the house standing over the land allotted to Gadadhar. It is stated that the Plaintiffs, having taken advantage of the non- recording of the land, are now falsely laying a claim to have a passage over that land over which their house stands and that they were never at any prior point of time using as such passage. 5. The Trial Court, faced with the above rival pleadings, has framed four issues. The Trial Court, upon examination of the evidence and their analysis, has answered all those issues against the Plaintiffs. The Plaintiffs thus being non-suited, having carried the First Appeal, have also been unsuccessful. 6. The Appeal has been admitted to answer the following substantial question of law:- RSA No.219 of 2019 Page 4 of 7 {{ 5 }} the prayer “Whether the for defendants over a portion of land of the State is maintainable in absence of the State as defendant?” injunction against 7. Learned counsel for the Appellants submitted that when the Plaintiffs are the owners of the land under Hal Plot No.108/743 measuring Ac.0.10 decimals, which now stands recorded as homestead land and when the land under plot no.58 situated in front of their homestead land which adjoins the village road running over the land under plot no.57, they have the natural right to use that land under plot no.58 to have the ingress and egress from their house to the road. He further submitted that the positioning of the land of the Plaintiffs as road and the land under plot no.58 belonging to the Government being not in dispute, the Courts below ought to have decreed the suit. 8. None appeared for the Respondents despite notice. 9. In course of hearing, before proceeding to answer the above substantial question of law, this Court, being of the view that one more following substantial question of law is also required to be framed, the same has been so framed for being answered first. That is as under:- “Whether the Plaintiffs have the natural right over the land under plot no.58”? 10. Learned counsel for the Appellants was heard on the above substantial question of law first as the next substantial question of law would stand to be answered only when the answer to this substantial question of law is returned in favour of the Plaintiffs. RSA No.219 of 2019 Page 5 of 7 {{ 6 }} 11. Admittedly, the property in question in respect of which the Plaintiffs claim to have the ingress and egress by using the land under plot no.58 which belongs to the State, was not the homestead land from the beginning. As per the case of the Plaintiffs, only in the year 2011, such conversion of kisam of their land appertaining to only a portion of one plot was made upon their application. The Defendants here claim that they have been in possession of the land under plot no.58 being so allotted by the State as landless person from the year 1998, which part of course has not been proved by them. Be that as it may, the Plaintiffs have not pleaded that the Defendants have all of a sudden encroached the land under plot no.58 sometime after the conversation of their own land, which is a portion of one plot. It be stated that the rest portion of that very plot is not having the homestead kisam. When the Plaintiffs claim that the property was partitioned amongst their predecessors-in-interest, it is not stated that neither their predecessor-in-interest nor the Plaintiffs had ever even used the whole plot of land or any part of thereof as homestead land. Therefore, in my considered view, the claim of the Plaintiff that they have a natural right of way over the land under plot no.58 owned by State is without any foundation when they do not come up with a case that their land as such is getting totally locked which makes it unusable for the purpose as it was being used prior to the conversion of that part of their plot of land. Moreover, the claim of natural right of way over the said land with respect to a part of the plot of land after getting the kisam of that part of the plot while keeping the kisam rest part of the plot unchanged does not hold water. RSA No.219 of 2019 Page 6 of 7 {{ 7 }} For all the aforesaid discussion and reasons, the first substantial question of law is answered against the Plaintiffs. Therefore, the next substantial question of law is not required to be answered as the above answer to the first substantial question of law leads to confirm the judgments and decrees passed by the Courts below. However, while parting, it is observed that the decision in the suit would not stand on the way of the State for protecting its rights over the property as available in law. 12. In the result, the Appeal stands dismissed. There shall, however, be no order as to cost. (D. Dash) Judge Basu RSA No.219 of 2019 Page 7 of 7