High Court
Case Details
HIGH COURT OF ORISSA : CUTTACK RSA NO.399 of 2018 In the matter of an Appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree dated 10.07.2018 and 20.07.2018 respectively passed by the learned Additional District Judge, Bhadrak in RFA No.40 of 2003 confirming the judgment and decree dated 25.06.2003 and 15.11.2003 respectively passed by the learned Civil Judge (Jr. Division), Bhadrak in Title Suit No.162 of 1994-I. ……… Rama Chandra Behera :::: Appellant -:: VERSUS ::- Chandramani Rath & Another :::: Respondents Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. ----------------------------------------------------------------------------------------- For Appellant … Mr. S.P. Mishra, Sr. Advocate For Respondents … Mr. S.K. Nayak-2. Advocate, ------ CORAM : MR. JUSTICE D.DASH --------------------------------------------------------------------------------------- Date of Hearing:26.09.2023 :: Date of Judgment:09.10.2023 --------------------------------------------------------------------------------------- D.Dash,J. The Appellant, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) has assailed the judgment and decree dated 10.07.2018 and 20.07.2018 respectively passed by the learned Additional District Judge, Bhadrak in RFA No.40 of 2003. {{ 2 }}
Legal Reasoning
The Appellant as the Plaintiff had filed the suit for permanent injunction alternatively, for recovery of possession concerning the suit land by arraigning the Respondent as the Defendant. The Respondent had also levied a counter claim seeking the relief of permanent injunction against the Appellant (Plaintiff) in respect of a part of the suit land. The suit having been filed in the Court of the Civil Judge (Junior Division), Bhadrak stood numbered as Title Suit No.162 of 1994-I. The Trial Court decreed the suit in part and decreed the counter claim. The present Appellant being thus the unsuccessful Plaintiff in getting the decree as prayed for in respect of the entire property shown in the plaint schedule, as also being under the sufferance for the decree passed by the Trial Court on the counter claim filed by the Respondent (Defendant) carried an Appeal under section 96 of the Code. The Appeal has been decreed in part. 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 is that the suit property shown in the schedule of the plaint belonged to Banchanidhi Behera, Nidhi Behra, Sani Behera, Puni Behera and Kartika Behera. The Plaintiff is the son of Banchanidhi Behera. As per the case of the Plaintiff, the suit property was allotted in favour of his father and others and after their death, the Plaintiff succeeded to the same. It is stated that Sani Behera died issueless for which his four brothers succeeded to the suit properties. Kartika Behera died leaving behind his wife Gelha and only daughter Sampada. Puni is said to have died leaving behind his only daughter Dali. Nidhi died Page 2 of 7 {{ 3 }}
Legal Reasoning
leaving behind his only daughter Srimati and Banchanidhi died leaving behind the Plaintiff and his elder brother Gopinath. It is stated that Ghela by Registered sale deed dated 06.08.1969 had sold her interest in the suit property to the Plaintiff and his brother-Gopinath and subsequently, daughter of Kartika sold her interest to the sons of Gopinath, namely, Narendra, Braja and Jatindra by executing registered sale deed on 29.10.1979. It is thus the case of the Plaintiff that he possessed the entire suit land since Gopinath, Narendra, Braja, Jatindra, Srimati and Dali had sold their interest over the suit land to him by a registered sale deed dated 20.03.1990. The Plaintiff thus stated to be in exclusive possession of the suit land as its absolute owner. It has been pleaded that in the year 1992 although the Plaintiff showed all such documents in respect of the suit land standing his favour, the Consolidation Authority at the final stage, after hearing the vendors of the Plaintiff had issued Parchha in respect of the suit land in favour of the Plaintiff. It is next alleged that the Defendants are goondas and by show of their muscle and money power, they have been trying to interfere in the peaceful possession of the suit land by the Plaintiff and attempting to raise construction of house over a portion of the suit land. The Plaintiff, therefore, filed the suit. 4. The Defendants in their written statement while traversing the plaint averments have asserted that the Plaintiff has absolutely no claim over the northern portion of the suit land to the extent of Ac.0.01 dec and his claim is confined to the extent of land measuring Ac.0.06 dec. from out of the suit land. They stated that the land measuring Ac.0.01 dec. from out of the total suit land which is northern portion belonged to Page 3 of 7 {{ 4 }} them and they have the right, title, interest and possession over the same, which they claim to have been recorded in their favour in the record of right finally published in the Consolidation Operation. It is also stated that the Consolidation Authority has accepted the claim of the Plaintiff in respect of Ac.0.06 dec. of land, which is a part of the total land in the suit and over that land, the Defendants states to have absolutely no claim. They further state that the matter concerning to the land measuring Ac.0.01 dec. has been finally set-at-rest by the order passed by the Revisional Authority under the Odisha Consolidation and Prevention of Fragmentation of Land Act, 1972 (in short, “the OCH & PFL Act”) in a Revision and that order having not been challenged, the record of right has been published. The Defendants further state to have never tried to interfere with the possession of the Plaintiff insofar as Ac.0.06 dec. of land is concerned. Therefore, the Defendants filed a counter claim seeking the relief of permanent injunction against the Plaintiff in respect of the land measuring Ac.0.01 dec. which stands recorded in their name. The Trial Court mainly relying upon the Consolidation Record of Rights in relation to the land measuring Ac.0.06 dec, standing in favour of the Plaintiff and the land measuring Ac.0.01 dec. standing in the name of the Defendants which had been published after the rival claims of the parties were decided in the Revisional Forum; has gone to decree the suit only in respect of Ac.0.06 dec. of land and the counter claim insofar as Ac.0.01 dec. of land is concerned. The Plaintiff then having preferred the First Appeal has failed in that move. Both the Courts below have arrived at a conclusion that the Record of Rights finally published in respect of Ac.0.06 dec. in the Page 4 of 7 {{ 5 }} name of the Plaintiffs and in relation to Ac.0.01 dec. of land in the name of the Defendants have attained finality and are not liable to be questioned in the Civil Court in so far as the right, title and interest of the parties over the suit lands are concerned. Therefore, regard being had to those record of rights, the suit has been decreed in part and the counter claim has been allowed. 5. Mr. S.P. Mishra, learned Senior Counsel for the Appellant (Plaintiff) submitted that the claim of the Defendants over the land measuring Ac.0.01 dec. was that they have acquired title by way of adverse possession and the Revisional Authority although has finally passed such order of recording of that Ac.0.01 dec. in favour of the Defendant, the same is wholly without any legal basis as the Defendants had not been able to produce any evidence in support of their claim of acquisition of title by way of adverse possession and the factum of admission about their possession by the Plaintiff before the Assistant Consolidation Officer even if accepted for a moment would not give rise to a case of acquisition of title by way of adverse possession in favour of the Defendants when none of essential ingredients stood established. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions of law. 6. Mr. S.K. Nayak, learned counsel for the Respondents (Defendants) assisting the Court in the matter of admission of the Appeal submitted that it being the admitted position that the Consolidation Authority has finally ordered for recording of Ac.0.01 dec. of land in favour of the Defendants and that having been passed in a Revision carried by the Defendants, the order when has not been further Page 5 of 7 {{ 6 }} challenged, the Courts below as per law have rightly given regard to the same while decreeing the suit in part in favour of the Plaintiff and the counter claim in favour of the Defendants in full. 7. Keeping in view the submission made, I have carefully read the judgments passed by the Courts below. 8. The Plaintiff filed the suit for injunction in respect of total land of Ac.0.07 dec. Admittedly, he has the record of right finally published in the consolidation operation in respect of Ac.0.06 dec. It is not denied that out of the suit land, Ac.0.01 dec. as per the record of right published in the consolidation operation stands in favour of the Defendants. It also reveals from the evidence that the Consolidation Officer vide Ext.A having passed the order of recording of suit land measuring Ac.0.01 dec., in favour of the Defendants, the plaintiff being aggrieved by that had carried an Appeal in challenging the said order dated 10.01.1995 . The Deputy Director (Consolidation), allowed the Appeal and set aside the order of the Consolidation Officer. The Defendants then again challenged that order of the Appellate forum by filing Revision, i.e., Consolidation Revision No.257 of 1995. The Revisional Authority has finally allowed the same vide its order dated 29.06.1998 which has been admitted in evidence and marked Ext.E. This it appears that the competing claims of the parties insofar as the suit land is concerned has already been decided by the Consolidation Authority and the Plaintiff does not state that the matter is still under challenge before any other forum in any proceeding arising therefrom. It being the settled position of law that once the parties worked out their rights before the Consolidation Authority, which the Authority Page 6 of 7 {{ 7 }} is empowered to decide, they cannot reagitate the same question over and again in the Civil Court and the question thus would stand finally concluded as per the decision of the Consolidation Authority, cannot be called in question in the Civil Court. The above settled position is based on the sound principles that the Consolidation Authorities created under the OCH & PFL Act, 1972 have all the powers to decide the competing claim of the parties in relation to the right, title, interest and their entitlement to possess the land covered under the Consolidation Operation must precede the final publication of the record of right as otherwise after publication of the record of right in the Consolidation Operation when again the claim of the parties over the land in question to readjudicated and decided that practically cannot be given effect to in the field in view of the consolidation of the lands being carried out in course of operation attaining the finality. In the backdrop of the above, the decision rendered by the Courts below are found to be well in order. In the wake of aforesaid, this Court is not in a position to accept the submission of the learned Senior Counsel for the Appellant (Plaintiff) that the Appeal involves any substantial question of law standing to be answered meriting admission. 9. In the result, the Appeal stands dismissed. There shall however, be no order as to cost. Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 16-Oct-2023 18:06:27 (D. Dash), Judge. Page 7 of 7