The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.261 of 2022 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment dated 13.09.2022 passed by the learned 1st Additional District Judge, Balangir in R.F.A. No.17/7 of 2017-21 confirming the judgment and decree dated 06.07.2017 & 15.07.20117 respectively passed by the learned Senior Civil Judge, Balangir in C.S. No.63 of 2008. ---- Laxmidevi Agrawal …. Appellant -versus- Radhakanta Nial & Others. …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - For Respondents -
Legal Reasoning
Mr.H.S.Mishra, (Advocate) Mr. G.Mishra, (Sr.Advocate) CORAM: MR. JUSTICE D.DASH DATE OF HEARING :10.02.2023 :: DATE OF JUDGMENT:28.02.2023 D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment dated 13.09.2022 passed by the learned 1st Additional District Judge, Balangir in R.F.A. No.17/7 of 2017-21. R.S.A. No.261 of 2022 Page 1 of 7 {{ 2 }} By the same, the Appeal filed by the Respondent No.2 who was the Defendant No.2 in Civil Suit No.63 of 2008 in the Court of learned Senior Civil Judge, Balangir under section 96 of the Code has been dismissed and thereby, the judgment and decree dated 6.07.2017 and 15.07.2017 respectively passed by the Trial Court have been confirmed. 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. The Respondent No.1 is the Plaintiff has filed the suit arraigning the Appellant as the Defendant No.3 and Respondent No.2 & 3 as Defendant No.2 & 1 respectively. The suit was with the prayer to declare the Plaintiff’s right, title, interest over the suit land confirms his possession and for issuance of permanent injunction against the Defendants. 4. The Plaintiff’s case is that his grandfather being a landless person acquired the suit land which is under Khata No.613 comprising plot no.1472/2533 measuring A0.520 decimals and plot no.1472/2534 measuring A1.020 decimals under holding no.615 of mouza-Bijakhaman as per C.S. record corresponding to Sabik Plot no.335 as at Schedule A and B of the plaint on lease basis in Revenue Case No.16/05 of 1986-57. Since then, he and his son Sashi Nial continued to possess the same and convert the same for agricultural use. They have been in continuous and undisputed possession of the suit land since 1955. The Plaintiffs claim to be in cultivating possession of the suit land since the time of his father. It is also stated that the Plaintiff’s father was granted with a Rayati Patta for a portion of land out of suit sabik holding which is holding No.407 of current settlement and in respect of other portions of land, note of possession has R.S.A. No.261 of 2022 Page 2 of 7 {{ 3 }} been recorded in favour of Sashi Nial in respect of the suit plots vide plot no.1470 and 1472/2534 of Holding No.615 and plot no.1472/2533 of Holding No.615 of current Settlement. It is further stated that late on the land measuring Ac.3.56 decimal of holding no.615 has been mutated in favour of Sashi Nial vide order passed in Mutation case no.120 of 19985 and included in Hal Khata No.407 of current settlement. It is stated that although the suit land under Ext.A and B have been recorded under Rakhit Khata vide holding no.613 and Anabadi Khata vide holding no.615 belonging to the State, it has been clearly noted during the settlement operation that Sashi Nial was in possession of the same. So, alternatively it is pleaded that the Plaintiff from the time of his predecessors in interest being in physical possession of the suit land right from the year 1955 in an open and peaceful manner that to continuously without any interruption from any quarter exhibiting hostile animus against the State as well as the villagers; he has acquired title over the suit land by way of adverse possession. It is further stated that since Defendants challenged right title interest over the suit land, the Plaintiff was compelled to file the suit. 5. The Defendant No.1 has been set ex parte and Defendant No.2 has not filed any written statement. The Defendant No.3 has been precluded from filing her written statement. 6. The Trial Court on the above state of affairs in the pleadings has framed 4 issues. Rightly taking up issue no.3, 4, 5 which basically relate to the claim of the Plaintiff and his entitlement to the reliefs; upon examination of evidence and their evaluation, the answer has been returned that the Plaintiff being in possession of the suit land since long is entitled to the relief of permanent injunction against Defendants in restraining them and their R.S.A. No.261 of 2022 Page 3 of 7 {{ 4 }} agents to interfere with the said possession of the suit land by the Plaintiff, except by the procedure established under law. 7. The Defendant no.2 being aggrieved by the judgment and decree passed by the Trial Court, having carried the First Appeal has been unsuccessful. It be stated here that the Defendant No.3 in that First Appeal had entered appearance and participated in the hearing in advancing the contentions against the decision of the Trial Court. 8. The Appeal has been admitted to answer the following substantial question of law:- “Whether absence of any relief claimed against the present Appellant (Defendant No.3), is the suit maintainable against her?” 9. Learned counsel for the Appellant (Defendant No.3) submitted that the Plaintiff in a casual manner although has stated in the plaint that the cause of action for the suit arose on 03.11.2007 and on subsequent dates when his right, title, interest as well as possession was challenged by the Defendants, no such specific fact has been stated in the plaint in providing the justification of saying that the cause of action for the suit had arisen against this Defendant No.3. He, therefore, submitted that when even by leading evidence the Plaintiff has not been able to establish her case as to her entitlement of any such relief as against this Defendant No.3, the decree passed against her by the Courts below cannot be sustained. 10. Learned counsel for the Respondent No.1 (Plaintiff) on the other hand submitted that the Plaintiff having asserted in the plaint to be in continuous possession over the suit land for a long period of time and when it has been accepted by the Courts below to have been established through clear cogent R.S.A. No.261 of 2022 Page 4 of 7 {{ 5 }} and acceptable evidence, this Defendant No.3 since has been stated to have questioned the right title interest and possession of the Plaintiff in so far as the suit land is concerned, the decree of permanent injunction has rightly been passed against all the Defendants including these Defendant No.3. 11. Keeping in view, I have carefully read the judgments passed by the Courts below. I have also perused the plaint and written statement and have travelled through the evidence both oral and documentary. 12. The plaint in its para 10 narrates as under:- “That, the cause of action for the suit arose on 3.11.2007 and on subsequent dates when the right, title and interest as well as possession of the Plaintiff is being challenged by the Defendants.” 13. The relief claimed in the suit are the followings”- (i) Right, title and interest of the plaintiff over the suit schedule-A and B lands be declared and the possession of the Plaintiff over the same be confirmed. (ii) Permanent injunction be issued against the defendants prohibiting them from illegally creating disturbance to the possession of the plaintiff over the schedule lands; (iii) Cost of the suit be ordered to be paid by the defendants to the plaintiff; and (iv) Any other suitable relief, as may be deemed fit and proper by the Court be granted to the plaintiff. R.S.A. No.261 of 2022 Page 5 of 7 {{ 6 }} 14. The Courts below have refused to declare the right title and interest of the Plaintiff over the suit land and accordingly have not confirmed his possession as such based on the right title and interest. However, finding being given that he is in possession of the suit land the Trial Court has been ordered that:- “The suit and same be decreed in part on contest against the defendants to the extent that the defendants and their agents shall not interfere with the possession of the plaintiff over the suit land except by the procedure established under law.” 15. Given a careful reading to the plaint averments, it is seen that the averments being made with regard to the possession of the suit land since long, on the basis of the same in further stating that such possession was with hostile animus against the State as well as villagers, it has however nowhere been stated that for what reason, the Defendant no.3 had been arraigned in the suit. There is no such allegation against the Defendant No.3 nor any such overact at her instance has been pointed out and pleaded. In a general manner, once it has been stated in para 10 of the plaint that the possession of the plaint was being challenged by the Defendants wherefrom we can say that it also includes this Defendant No.3. Then straight way in the prayer relief has been sought for to issue permanent injunction against the Defendants which includes this Defendant No.3. The courts below having not found out any such facts and circumstances leading to the arraignment of Defendant No.3 as a party to the suit, have neither gone to frame any issue concerning the Defendant no.3. In that view of the matter, in my consideration it ought to be held that as no cause of action to file the suit has arisen as against Defendant No.3, no decree can be passed as against her in this suit as laid. Therefore, the Plaintiff having failed to show any cause of Page 6 of 7 R.S.A. No.261 of 2022 {{ 7 }} action for filing the suit against the Defendant No.3 in seeking any such relief; the Courts below ought not to have passed the decree for permanent injunction in so far as this Defendant No.3 is concerned. 16. The substantial question of law is thus answered in favour of Defendant No.3 in holding that the decree for permanent injunction passed in favour of the Plaintiff would not stand against and in so far as this Defendant No.3 is concerned. 17.
Decision
In the result, the Appeal is allowed. The judgment and decree passed by the Courts below to the extent as indicated above are set aside. There shall be however no order as to cost. (D. Dash), Judge. Gitanjali R.S.A. No.261 of 2022 Page 7 of 7