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IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.365 of 2017 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 15.07.2017 and 03.08.2017 passed by the learned Additional District Judge, Champua in R.F.A. No.1/17 of 2011-2007 confirming the judgment and decree dated 31.01.2007 and 15.02.2007 respectively passed by the learned Civil Judge (Senior Division), Champua in C.S. No.9 of 2004. ---- Serajin Mahanta & Others …. Appellants -versus- Collector, Keonjhar & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - M/s.Niranjan Lenka, H.K. Mohanta, L. Sahu & Mrs. N. Lenka, (Advocates) For Respondents - Mr.S. Pattanaik (Additional Government Advocate) CORAM: MR. JUSTICE D.DASH Date of Hearing : 17.01.2023 : Date of Judgment: 27.01.2023 D.Dash,J. The Appellants, in this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment passed by the learned Additional District Judge, Champua in R.F.A. No.1/17 of 2011-2007. By the same, the Appeal filed by the Appellants being the
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unsuccessful Plaintiffs in Civil Suit No.9 of 2004 in the Court of the learned Civil Judge (Senior Davison), Champua under section 96 of Code, has been dismissed. The Trial Court by its judgment and decree RSA No.365 of 2017 Page 1 of 8 {{ 2 }} dated 31.01.2007 and 15.02.2007 respectively had dismissed the suit filed by these Appellants as the Plaintiffs for declaration of their right, title, interest and confirmation of possession over the suit schedule ‘A’ land with further prayer for recovery of possession in case of dispossession and permanent injunction against the State and its Officials in respect of a tank and its embankment covering the land to the extent of Ac.3.94 dec. The suit having been dismissed, these Appellants being aggrieved thereby had carried the First Appeal which too has been dismissed. Hence the present Second 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. Plaintiff’s Case:- The Plaintiff’s case is that one Bhajana Mahanto, their common ancestor had acquired Ac.3.58 dec. of land by an order bearing no.200 of 1921-22 in Nayabadi Case No.6/1917-18 to excavate a tank over the land in order to irrigate his land and for pisciculture. The then Sub- Divisional Officer had permitted Bhajana to excavate the tank over the said land by his order in B.T. Case No.6 of 1922-23. He then excavated the tank over the Nayabadi land by spending money from his own purse and as such converted same. It is stated that the tank covering an area of Ac.3.84 dec. was a part of Sabik Plot No.307 belonging to the State and that had been subsequently granted to Bhajana. The tank after its excavation by Bhajana was locally called as ‘Jharabeda Bandha’. Bhajana used the tank as his own till his death and was irrigating his lands and carrying over pisciculture activities. RSA No.365 of 2017 Page 2 of 8 {{ 3 }} He was maintaining the tank too. On his death, his sons continued to do so and the Plaintiffs thereafter as the successors are possessing the same without any interruption and hindrance from any quarter with the full knowledge of the State Authorities. It is stated that in the Hal settlement operation even though it was in possession of the Plaintiffs, the Settlement Authorities without proper inquiry recorded the suit tank in the name of the State with a note in the remark column “MAINTAINED BY NAHABEDA GRAM PANCHAYAT”. They state that the tank was never transferred to Gram Panchayat nor maintained by Gram Panchayat and it belongs to them and they are continuing to possess the same despite such recording in the record of right published in the settlement operation. When the Defendant No.1 moved the higher authority by issuing letter dated 10.07.2003 for transfer of the tank to the hands of the Gram Panchayat and Defendant No.2 started preparatory works for such transfer, the Plaintiffs serving a notice under section 80 of the C.P.C., filed the suit. 4. The Defendants in the written statement while traversing the plaint averments denied the factum of acquisition of Ac.3.58 dec. of land by Bhajana Mahanto as per the Nayabadi Case No.6 of 1917-18. They also state that said Bhajana was never permitted to excavate the tank in B.T. Case No.6 of 1922-23 for irrigation of his land and to carry out pisciculture activities. They have denied the excavation of the tank by Bhajana and its maintenance by him at any point of time during his life time. It is also stated that the tank was never used as a private tank by Bhajana and his successors and it was not in their exclusive possession. They state that the land originally under Sabik Plot No.307 belonged to the State and the State is the owner having RSA No.365 of 2017 Page 3 of 8 {{ 4 }} full proprietary right over it which has thus been rightly recorded in the name of the State in the record of right published in the last settlement operation and it is being maintained by Nahabeda Gram Panchayat for the benefit of the general public though not yet so transferred in favour of the Panchayat. 5. With the above rival pleadings, the Trial Court framed in total nine issues. The crucial issue is Issue No.6 which runs as under:- Whether Bhajana, the ancestor of the Plaintiffs acquired Ac.3.58 dec. of land in Nayabadi Case No.6 of 2017-18 for irrigation and pisciculture and permitted by the then S.D.O. in B.T. Case No.6 of 1922-23 to excavate the suit tank. However, Issue No.6 being also the issue relating to the claim over the suit land by the Plaintiffs that they have the right, title and interest and Issue No.8 since concerns with the reliefs prayed for by the Plaintiffs for issuance of permanent injunction against the Defendants, the Trial Court clubbed all those for decision. 6. The Trial Court’s answers upon detail examination of evidence, both oral and documentary, are followings:- (a) the Plaintiffs has failed to prove the acquisition of the land under Sabik suit plot by Bhajana in Nayabadi Case No.6 of 1917-18; (b) the excavation of suit tank by Bhajana either over the land under Sabik Plot No.307 or over the Sabik suit plots on the strength of Ext.12 is not believable. It be stated here that Ext.12 is the certified copy of the order- sheet in B.T. Case No.6 of 1922-23; and (c) the Plaintiffs have no right, title, interest and possession over the suit land/tank. RSA No.365 of 2017 Page 4 of 8 {{ 5 }} 7. The First Appellate Court being moved by the unsuccessful Plaintiffs has affirmed all such findings after reappreciating the evidence and making their evaluation at its level. 8. Thus the concurrent finding of the Courts below is that Bhajana had not acquired the land in question under the order passed in Nayabadi Case No.6 of 1917-18 and had excavated the tank as per the order passed in B.T. Case No.6 of 1922-23. 9. Learned counsel for the Appellants at the outset moved an Application under Order 6, Rule 17 of the Code seeking leave at this stage when the Second Appeal has not yet been admitted for amendment of the plaint. This Application has been numbered as I.A. No.797 of 2022. It is pertinent to indicate here that this Application being filed earlier, an order had been passed that it would be taken up for hearing and disposal while hearing on admission of the Appeal. The amendment sought for is to correct the Nayabadi Case No.6 of 1917-18 as it specifically finds mention in Paragraph-2 and 10(i) of the plaint. This Nayabadi case No.6 of 2017-18 is now sought to be substituted by Nayabadi Case No.114 of 2017-18. It has been averred at paragraph-3 of the Application that while preparing for the present
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Appeal, it came to the notice of the learned counsel for the Appellants (Plaintiffs) that the Nayapbadi Case number has been inadvertently written in the plaint. Having said so, it has, however, again been stated in paragraph-4 of the application that during pendency of the First Appeal there was a move for amendment of the plaint for correction of the said Nayabadi case number and then the First Appellate Court having rejected the same, these Appellants (Plaintiffs) had invoked the jurisdiction of this Court under Article 226 and 227 of the Constitution of India and that was numbered as W.P.(C) No.12271 of 2008. This RSA No.365 of 2017 Page 5 of 8 {{ 6 }} Application has subsequently been dismissed by order dated 16.03.2016 as these Appellants (Plaintiffs) did not pursue the same. Learned counsel for the Appellants submitted that the mistake in writing the Nayabadi case in the plaint being an inadvertent one remaining unnoticed and when the Courts below referring to the number of the Nayabadi case and upon examination of the evidence in that light have answered that issue of acquisition of the suit tank by Bhajana; this Court should permit the same even if the move is at a belated stage. 10. Learned counsel for the State vehemently opposed the move. According to him, the Appellants (Plaintiffs) having made an attempt to amend the plaint during pendency of the First Appeal when have ultimately failed and thereafter, they having fully participated in the hearing of the First Appeal allowing it to be disposed of in merit; the move at this highly belated stage for amendment of the plaint is liable to be dismissed in lamine, as according to him, the Appellants (Plaintiffs) having already proved the records of other Nayabadi case and having failed in both the forums are now precluded from saying that it was an inadvertent mistake remaining unnoticed for all these period right from the year 2004 to 2022. 11. In order to dispose of this Application, first before proceeding further find out as to if there arises the substantial question(s) of law for being answered meriting admission of this Appeal, keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also travelled through the plaint averments as well as the averments taken in the written statement and have perused the evidence on record. RSA No.365 of 2017 Page 6 of 8 {{ 7 }} 12. The Trial Court upon detail examination of the evidence, both oral and documentary, has found that the documents extends no support to the evidence of P.W.1 (Plaintiff No.1) and the case laid in the plaint that Bhajana had acquired the suit tank plot in Nayabadi Case No.6 of 1917-18. It has again been said that the Plaintiffs have failed to prove the acquisition of the land under suit sabik plot by Bhajana in Nayabadi Case No.6 of 1917-18. After verification of the documents such as Sabik record of right, the order passed in Nayabadi case and other evidence on record, the First Appellate Court while travelling through the evidence has found no document relating to Nayabadi Case No.6 of 1917-18 and Order No.200 as pleaded and then the discrepancies with regard to the areas have also been noticed. It has thus also been found out that the documents are not clear to say that the tank in question was excavated by Bhajana by virtue of the order passed in B.T. Case No.6 of 1922- 23 (Ext.12). 13. The Plaintiffs had taken a move to amend the plaint during pendency of the First Appeal. The prayer being rejected by the First Appellate Court by passing a reasoned order, the Plaintiffs had invoked the jurisdiction of this Court under Article 226 and 227 of the Constitution. However, that being not pursued for its disposal on merit, the Plaintiffs thereafter have participated in the hearing of the First Appeal for its decision on merit with the pleading and evidence as available. In that view of the matter without dwelling upon the issue on merit of the Application in further saying whether in normal course, the amendment of the plaint can be permitted at the stage of Second Appeal and that too the rider contained in the proviso to RSA No.365 of 2017 Page 7 of 8 {{ 8 }} Order 6 Rule 17 of the Code being passed through, the present Application, in my considered view, is not liable to be now entertained again as the fate of the said prayer has attained is finality during the First Appeal running in continuation of the Suit. The prayer for amendment of the plaint as sought for is hereby rejected and accordingly, the I.A. No.797 of 2022 stands dismissed. 14. In view of the rejection of the prayer for seeking amendment of the Plaint that Bhajana had not acquired the property in question under Nayabadi Case No.6 of 1917-18, this Court on the available evidence finds absolutely no such infirmity at all on the part of the Courts below in recording the finding against the Plaintiffs. The Appeal is thus liable to be dismissed as no such substantial question of law surfaces for being answered. 15. In the result, the Appeal stands dismissed. There shall, however, be no order as to cost. (D. Dash), Judge. Himansu RSA No.365 of 2017 Page 8 of 8