The High Court · 2017
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.156 of 2017 In the matter of an Appeal under Section 100 of the Code of Civil Procedure,1908 assailing the judgment dated 4th January 2017 and 19th January 2017 respectively passed by the learned District Judge, Baragarh in R.F.A. No.59 of 2015 confirming the judgment and decree dated 17th October 2015 and 4th November 2015 respectively passed by the learned Nyayadhikari, Gram Nyayalaya, Attabira in Civil Suit (GN) No.61/30 of 2011/13. … Lekru Biswal & Others …. Appellants -versus- Lukru Munda & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): ======================================================= For Appellants - M/s. Rama Chandra Rath, (Advocate), For Respondents - ------------- CORAM:
Legal Reasoning
MR. JUSTICE D. DASH Date of Hearing: 10.04.2024 : Date of Judgment : 15.04.2024 D.Dash,J. The Appellants, by filing this Appeal under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have challenging the judgment & decree passed by the learned District Judge, Baragarh in R.F.A. No.59 of 2015. RSA No.156 of 2017 Page 1 of 10 These Appellants as the Plaintiffs have filed the Civil Suit (GN) No.61/30 of 2011/13 for permanent injunction simplicitor against the Respondents arraigned as the Defendants therein in the Court Nyayadhikari, Gram Nyayalaya, Attabira at Bargarh. The suit having been dismissed. These Appellants being the unsuccessful Plaintiffs had carried the Appeal under section-96 of the Code which has also been dismissed. Hence, the present Second Appeal is at the instance of the Appellants, who have remained unsuccessful as the Plaintiffs before the Trial Court as well as the First Appellate Court. 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 suit land described in Schedule-A of the plaint was in possession of the Plaintiff No.1, since 40 years before the institution of the suit. The Plaintiff No.1 while in possession of the suit land has allotted some portions to each of his sons, who are Plaintiff Nos.2 and 3. Cases under the Odisha Prevention of Land Encroachment Act, 1972 had been initiated against the Plaintiff Nos. 2 and 3 by Tahasildar, Attabira as the suit land stood recorded in the name of Government khata. Those encroachment cases were 950/2006, 151/2007, Page 2 of 10 RSA No.156 of 2017 395/2009, 716/2009, 718/2009, 1042/2010 and 1061/2010. In those encroachment proceedings for such occupation of the land by Plaintiff Nos. 2 and 3, fine has been collected. It is further stated that while being in possession of the suit land, they have developed the same by spending lot of money and made it fit for cultivation. It is stated that the Defendants all of a sudden tried to dispossess the Plaintiffs from the suit land. However, they did not succeed in that move. Thereafter, when they had subsequently attempted to do so, a proceeding under section-144 of the Cr.P.C. was initiated vide Misc. Case No.252 of 2009 against Defendant No.11 and his father, which was decided in favour of the Plaintiffs. The Defendants have no manner of right, title and interest over the suit land. When the Plaintiff Nos.2 and 3 are rightful owner in possession of the suit land in order to prevent the Defendants from creating any untoward situation in the direction to disposes of the Plaintiffs from the suit land, the suit has come to be filed. 4. The Defendant Nos.1 to 3, 5, 6 and 8 contested the suit by filing written statement. Their case is that they are landless persons and in occupation of various portions of the suit land after having made those lands fit for cultivation by dint of their hard labour and they have remained with a fond hope that the Government ultimately would settle the said land in their name in future. It is stated that the Plaintiffs are affluent and rich Page 3 of 10 RSA No.156 of 2017 persons and they are owners of vast area of Rayati lands which they possess. It is further stated that having no right, title and interest over the suit land with a bid to grab the same, they have managed to initiate encroachment cases against them by gaining over the Revenue Authorities when in fact they had never been in possession of the suit land. It is further stated that these Defendants had never attempted to dispossess the Plaintiffs and that question did not arise as the Plaintiffs were never in possession of the suit land. 5. The Defendant No.11 claims to be in possession of the suit land measuring Ac.0.68 decimals. It is stated that for such possession, an encroachment case bearing No.1358 of 2010 had been started against him by Tahasildar, Attabira and he as per the order in the said case paid the fine. It is his case that he had constructed a hut over the suit land. He has denied the possession of the suit land by the Plaintiffs by making the land fit for cultivation by spending money. 6. On the above rival pleadings, the Trial Court framed in total as six (6) issues. The Trial Court upon examination of evidence and their evaluations having answered the issue that the Plaintiffs have failed to prove that they are in exclusive possession of the suit land, they have been declined to be granted with the relief of permanent injunction. Page 4 of 10 RSA No.156 of 2017 7. The Plaintiffs accordingly been non-suited by the Trial Court, having carried the First Appeal, the First Appellate Court addressing the contentions raised before it, upon examination of the evidence and their independent assessment at its level has affirmed the finding of the Trial Court as regards the failure of the Plaintiffs to prove that the possession of the suit land rests with Plaintiffs. Having held so, the dismissal of the suit as had been ordered by the Trial Court has been confirmed. 8. Mr. R.C. Rath, learned Counsel for the Appellants (Plaintiffs) submitted that despite such overwhelming evidence both oral and documentary on record standing in support of the possession in favour of the Plaintiffs over the suit land, the Courts below have gone wrong to say that the Plaintiffs have failed to prove over the possession of the suit land by leading, clear, cogent and acceptable evidence. He submitted that the presumptions available from the documentary evidence as regards the factum that although the suit lands was with the Plaintiffs have been drawn at all and had those been drawn, the burden of proof would have shifted upon the contesting Defendants to dislodge the said presumptions so as to thwart the move of the Plaintiffs in seeking of decree of permanent injunction against the Defendants. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions of law. RSA No.156 of 2017 Page 5 of 10 9. Keeping in view the submissions made, I have carefully read the judgments passed by the Trial Court as well as the First Appellate Court. I have also perused the pleadings. 10. Admittedly, the land in suit stands recorded in the name of the Government. Neither the Plaintiffs nor any of the Defendants claim title over the suit land. Although Plaintiffs at one place has pleaded to be having the right, title and interest over the suit land, it is not further stated that as to how it was so acquired. No plea has been taken by the Plaintiff as regards acquisition of title over the suit land by way of adverse possession. Despite all such move of the Defendants to dispossess the Plaintiffs as alleged, the Plaintiffs have not been made any prayer for declaration of their right, title and interest over the suit land. The suit is for permanent injunction simplicitor. When the Plaintiffs claim to be in possession of the suit land for 40 years before the institution of the suit; the Defendants also claim to be in possession of the suit land in separate parcels stretching over a long period. 11. In a suit of this nature, claiming the relief of permanent injunction, the Plaintiffs are under the legal obligation to plead and prove that they were in settled position of the suit land which needs to be protected from the hands of the persons who RSA No.156 of 2017 Page 6 of 10 are subsequently attempting to dispossess and trespass over the same by force and in violation of law. It is the settled position of law that even the owner of the a piece of land, in the event a person is in settled position of the suit land cannot dispossess him by force, without following due process of law. Thus, in the given case, the burden of proof of the fact that the Plaintiffs were / are in possession of the suit land when they filed the suit or when the cause of action so arose for the wrongful move of the opponents, lies on the Plaintiffs. In the given case, the Plaintiffs in order to discharge the said burden of proof have laid oral evidence and proved some documents which have been admitted in evidence and marked, Ext.1 to 14. 12. The Plaintiff Nos.1 and 2 have examined themselves as P.Ws.1 and 2 respectively. The documents relating to the encroachment proceedings, whose numbers have been stated in the aforesaid paragraph, have been proved and admitted in evidence. Ext.4 is the certified copy of the order and the map in respect of the Encroachment Proceeding No.1358 of 2010 that was initiated against the Defendant no.11. When the witnesses examined from the side of the Plaintiffs have stated about the possession of the suit land by the Plaintiffs, the P.W.3 (Plaintiff No.3) has deposed that the Plaintiffs are not in possession of the suit land and it is he who alone is occupying the land measuring Page 7 of 10 RSA No.156 of 2017 Ac.2.35 decimals. It reveals from the evidence of P.Ws.1, 2 and 3 that the encroachment proceeding was pending against P.W.3 (Plaintiff No.3) with respect to entire land of Ac.2.35 decimals which he claims to be in his exclusive possession. Ext.1 shows that the said encroachment proceeding has been levied against P.W.3 in the year 2007. At the same time, Ext.2 indicates that the encroachment proceeding was against P.W.2 and that was in respect of the land measuring Ac.4.70 decimals. The present suit is confined to the land admeasuring Ac.1.35 decimals and Ac.3.90 decimals appertaining to Chaka No.02(P) in respect of which an encroachment case No.950 of 2006 had been initiated against D.W.2. So total area of the suit land upon which the Plaintiffs claim possession is Ac.6.25 decimals. At this juncture, when the evidence let in by the Defendants through D.Ws. 1 and 2 are gone through, it is found that they have proved certified copy of the report of the Revenue Inspector, which was in relation to Encroachment Case No.1358 of 2010, Ext.A. They too have produced and proved rent receipts showing payment of fine. Evidence of P.W.1 reveals that no encroachment proceeding was started against him and he too has not made any attempt to get the suit land recorded in the name. However, the encroachment proceedings have been initiated against P.Ws. 2 and 3. Thus, the case of the Plaintiffs that P.W.1 was in possession of the suit land at the beginning which continued for Page 8 of 10 RSA No.156 of 2017 quite a good length of time till he gave the land to his two sons, Plaintiff No.2 (P.W.2) and Plaintiff No.3 (P.W.3) falls flat. 13. The Trial Court as well as the First Appellate court after having made detail and elaborate examination of evidence both oral and documentary in the backdrop of aforesaid having concurrently held the Plaintiffs to have failed to prove their possession of the suit land for 40 years prior to the institution of the suit, this Court finds absolutely no perversity therein. In fact, the exact description of the suit has not been given by P.Ws. 1, 2 and 3 in their evidence. They have also failed to show through satisfactory evidence, the exact land upon which the Defendant No.11 is creating disturbance. The Plaintiffs (P.Ws. 1, 2 and 3) when claim to be in possession of the suit land; it is seen from document that the possession of the land measuring Ac.2.68 decimals rests with the Defendant No.11. The map locates this land under exclusive possession of the Defendant No.11. Ext.4 is stated by Defendant No.11 to be a manufactured one in order to create confusion and doubt regarding existence of land measuring Ac.2.68 decimals which is under his occupation. The Trial Court has made comparison of Exts.4 and 5 and held that the extent of land claimed to be under possession of the Plaintiffs is measuring Ac.7.05 decimals and not measuring Ac.6.25 decimals and accordingly the claim of the Plaintiffs has been rejected. RSA No.156 of 2017 Page 9 of 10 The First Appellate Court appears to have touched upon each piece of evidence to find out as to whether the Plaintiffs have discharged the burden of proof that they were/are in possession of the same. This Court finds absolutely no such infirmity either in the approach or with the conclusion arrived at. In the absence of any such infirmity much less to say perversity, this Court being in seisin of Second Appeal is not permitted to reappreciate the evidence to take another view even though it may so emerge if third round of exercise of appreciation of evidence is undertaken which is impermissible. 14. In the wake of aforesaid discussions and reasons, the submission of the learned Counsel for the Appellants (Plaintiffs) for admission of the Appeal to answer the substantial questions of law as pointed out by him fails and it is held that the Appeal does not merit admission as no substantial question of law arises for being answered. 15. In the result, the Appeal stands dismissed. There shall however be no order as to cost. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 23-Apr-2024 18:04:28 Narayan RSA No.156 of 2017 (D. Dash), Judge. Page 10 of 10