Civil Suit No. 1044/607 of 2017 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.263 of 2023 In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment & decree dated 22nd April, 2023 & 4th May, 2023 respectively passed by the learned District Judge, Puri in R.F.A. No.21 of 2021 setting aside the judgment & decree dated 11th October, 2021 & 25th October, 2021 respectively passed by the learned Civil Judge, Senior Division, Pipili in Civil Suit No.1044/607 of 2017/16. ---- Bula Das & Others …. Appellants -versus- Sri Chhabindra Pradhan …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - M/s.Damodar Deo, M. Deo S.S. Deo & D. Deo (Advocates) For Respondent - Miss.Pratyusha Naidu (Advocate)
Legal Reasoning
this Court in the 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 Suit. 3. Plaintiff’s case is that he is the recorded owner of the suit land and the Defendants have absolutely no right, title and RSA No.263 of 2023 Page 2 of 7 {{ 3 }} interest over the same. It is further stated that the land under Plot No.867 is situated on the north of the suit land and that belongs to the Defendant No.1-Bula Das. It is further said that taking advantage of the situation of the suit plot, i.e., Plot No.866 and plot of the Defendant No.1, i.e, Plot No.867, the Defendants created disturbance in order to grab the suit land. It is also stated that during pendency of the suit, they have removed the ridge running in between Plot Nos.866 & 867 and have encroached upon the suit land measuring Ac.0.070 decimals of Plot No.866 from their side. 4. The Defendants, while traversing the plaint averments in their written statement, have admitted that the Plaintiff is the owner of the land under Plot No.866. It is also admitted that the land under Plot No.867 lies on the adjacent north of the suit plot, i.e., Plot No.866. They state that the said land under Plot No.867 belongs to them. It is their case that the Plaintiff as also the Defendants are in possession of their respective plots of lands as shown by the Consolidation Authorities. 5. The Trial Court, on the above rival pleadings, has framed in total ten issues. Deciding the crucial issue as to the entitlement of the Plaintiff to the reliefs claimed in so far as the land under Plot No.866 to an extent of Ac.0.070 decimals towards the north is concerned, upon examination of the evidence and their RSA No.263 of 2023 Page 3 of 7 {{ 4 }} evaluation, finding has been returned against the Plaintiff. That practically has led to the dismissal of the suit. 6. The First Appellate Court, being moved by the unsuccessful Plaintiff, has, however, appreciating the evidence, in the backdrop of the rival pleadings, has set aside the said finding and has come to hold that the Plaintiff has the right, title and interest over the suit land, which is a part of the land under Plot No.866, the Defendants do not say any sort of claim. 7. The Appeal has been admitted to answer the following substantial question of law:- “Whether the learned First Appellate Court is right in allowing the suit and grant the Plaintiff?” 8. Mr.D. Deo, learned counsel for the Appellants (Defendants) submitted that the Plaintiff, having failed to prove through clear, cogent and acceptable evidence that the Defendants have encroached upon his land to the extent of Ac.0.070 decimals under Plot No.866, when the Trial Court was right in dismissing the suit, the First Appellate Court has committed grave error in reversing the same. He further submitted that in view of the controversy that is required to be decided; the Courts ought to have deputed the Civil Court Commissioner to measure the suit land and other contiguous lands in the field in placing the clear picture and that having not been done and without the help of RSA No.263 of 2023 Page 4 of 7 {{ 5 }} the same, findings cannot be sustained. In support of the same, he relied upon the decisions in the case Haryana Waqf Board -V- Shanti Sarup & Others; (2008) 8 SCC 671, Raghavan Sasikumar -V- Parameswaran Nadar Sathyananadhan Nadar Kanakottu Padippuru Veedu & Others; 2022 (II) CLR (SC) 708, Soumitra Dutta -V- Jayadeep Dutta; 2023 (I) OLR 936, Muralidhar Nayak -V- Jayahari Mahanta & Others; 2018 (II) OLR 1101 and Smt. Joshna Rani Patnaik & another - V- Dr. Krushna Singha Padhy; 2018 (Supp.II) OLR 348. 9. Miss.P.Naidu, learned counsel for the Respondent (Plaintiff) submitted that the very case of the Plaintiff that he is the recorded owner of the land under Plot No.866 in total measuring Ac.0.740 decimals, when stands admitted by the Defendants and as such, they do not project any rival claim over that plot of land or even on any part of it; in further stating that they have nothing to do in that plot of land, being the owner in possession of their land under Plot No.867, which adjoins the suit plot no.866, the First Appellate Court is wholly right in decreeing the suit. 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 and the evidence both oral and documentary let in by the parties, as placed. RSA No.263 of 2023 Page 5 of 7 {{ 6 }} 11. In order to address the rival submission and to find out the answer to the substantial question of law, the evidence on record first of all need be gone through. The Plaintiff’s case is that he is the recorded owner of the land under Plot No.866, which measures Ac.0.740 decimals. Said land as per the consolidation record (Ext.3) stands in the name of Surati Pradhan, who is the mother of the Plaintiff and the Plaintiff claims that he has succeeded to the said property upon the death of his mother and thereafter, he has mutated the said land in his own name under Ext.1. He has also proved the rent receipts showing payment of land revenue to the State for the said land vide Ext.2 series. The Defendants, in their written statement, in clear terms, have admitted the ownership of the Plaintiff in so far as the land under Plot No.866 is concerned; in further stating that the said plot of land measures in total Ac.0.740 decimals. The suit land is a part of that total land of Ac.0.740 decimals and its extent is said to be Ac.0.070 decimals towards the north, which adjoins the southern boundary of the Defendants’ land under Plot No.867. The Plaintiff has not laid any claim over the land under Plot No.867, which is owned and possessed by the Defendants. In such state of affair in the pleading and the evidence more particularly, the evidence of Defendant No.4 examined as D.W.1 that the Plaintiff is in possession of total area of Plot No.866, RSA No.263 of 2023 Page 6 of 7 {{ 7 }} which measures Ac.0.740 decimals and that area has not been reduced, the First Appellate Court, in my considered view, is found to have rightly decreed the suit in rectifying the grave mistake committed by the Trial Court in directing the examination in a completely different direction, which was not at all necessary and thus impermissible. The decisions (Supra) cited by the learned counsel for the Appellants (Defendants), being clearly distinguishable in the facts and circumstances of the case at hand, do not come to the aid of the Defendants. The substantial question of law is accordingly answered against the Defendants, which in turn, leads to confirm the judgment & decree dated 22nd April, 2023 & 4th May, 2023 respectively passed by the learned District Judge, Puri in R.F.A. No.21 of 2021. 12. Resultantly, the Appeal stands dismissed. There shall be no order as to cost. Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 13-Mar-2024 19:14:56 RSA No.263 of 2023 (D. Dash), Judge Page 7 of 7
Arguments
CORAM: MR. JUSTICE D.DASH Date of Hearing : 01.03.2024 : Date of Judgment :11.03.2024 D.Dash,J. The Appellants, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have challenged the the judgment & decree dated 22nd April, 2023 & 4th May, 2023 respectively passed by the learned District Judge, Puri in R.F.A. No.21 of 2021. RSA No.263 of 2023 Page 1 of 7 {{ 2 }} The Respondent, as the Plaintiff, had filed Civil Suit No.1044/607 of 2017/16 in the Court of the learned Civil Judge, Senior Division, Pipili for declaration of his title, confirmation of possession and in the alternative, for recovery of possession of the suit land described in the schedule of the plaint, i.e, the land under Sthitiban Khata No.754, Chaka No.412, Plot No.866 measuring area Ac.0.070 decimals towards the north from out of the total area of Ac.0.740 decimals being described with the boundaries. The suit stood dismissed. Therefore, the Respondent (Plaintiff), being non-suited, had carried the Appeal under section 96 of the Code, which has been allowed and the right, title and interest of the Respondent (Plaintiff) over the suit land has been declared and the Appellants (Defendants) have been directed to give vacant delivery of possession of the suit land to the Respondent (Plaintiff) within a time stipulated therein. These Appellants (Defendants) thus, having suffered from the judgment and decree passed by the First Appellate Court, are now before