Civil Suit No. 73 of 2012 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.392 OF 2023 In the matter of an Appeal under Section 100 of the Code of Civil Procedure,1908 assailing the judgment and decree dated 30.06.2023 and 04.07.2023 respectively passed by the learned Additional District Judge, Kunchinda in R.F.A. No.04 of 2019 confirming the judgment and decree dated 10.10.2018 and 12.10.2018 passed by the learned Senior Civil Judge, Kuchinda in Civil Suit No.73 of 2012. ---- Damayanti Mohapatra & Another :::: Appellants Madha Mohapatra & Others :::: Respondents -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): ======================================================================================= For Appellants -
Legal Reasoning
Mr. P.K. Kar, Advocate. For Respondents - ------------------- CORAM: MR. JUSTICE D. DASH Date of Hearing: 12.02.2024 :: Date of Judgment:15.02.2024 D.Dash,J. The Appellants, by filing this Appeal under Section-100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’), have assailed the judgment and decree dated 30.06.2023 and RSA No. 392 of 2023 Page 1 of 7 {{ 2 }} 04.07.2023 respectively passed by the learned Additional District Judge, Kunchinda in R.F.A. No.04 of 2019. These Appellants as the Plaintiffs had filed the suit (C.S. No.73 of 2012) in the Court of learned Senior Civil Judge, Kuchinda. The suit is for declaration of their right, title, and interest over the suit land along with the Respondent Nos.13 to 15 (Defendant Nos.13 to 15) with further relief of permanent injunction. The suit came to be dismissed. So, the Appellants (Plaintiffs) being non-suited had carried an 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 in both the Trial as well as First Appellate Courts. 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 land in Schedule-A of the plaint was originally a part and parcel of the land under Sabik Plot No.1656 measuring Ac.0.18 decimals under Sabik Khata No.42 of mouza: Jayapurgarh. It was recorded in the name of Dhani Mali @ Mohapatra, son of Anirudha Mohapatra, who is the common ancestor of the Plaintiffs and Defendant Nos.13 to 15. It is stated that in the Major Settlement Operation, out of said Ac.0.18 RSA No. 392 of 2023 Page 2 of 7 {{ 3 }} decimals only Ac.0.04 decimals had been recorded under M.S. Plot No.713 under M.S. Khata No.86 in the name of Dhani Mali @ Mohapatra and Ac.0.09 decimals out of that Ac.0.18 decimals has been recorded under M.S. Plot No.2307, Khata No.63 in the name of Dileswara and Arjuna, sons of Dharanidhara Mohapatra, Sashibhusan Mohapatra and Basanta Mohapatra sons of Khageswara Mohapatra. It is further stated that the Settlement Authority have erroneously recorded the said Ac.0.09 decimals of land, when the facts remain that the ancestors of the Plaintiff namely, Anirudha had constructed house over Sabik Plot No.1656 corresponding to Major Settlement Plot No.2307. After the death of Anirudha, his son Dhani had been residing in the same house and after his death, his son Bansidhar and after him the Plaintiffs and Defendant Nos.13 to 15 are residing in the said house. The suit land according to the Plaintiffs is neither the land of Dharanidhara or Khageswara nor the Defendant Nos.1 to 12 were or are in possession of the said land at any time before or now. It is further stated that on 10.09.2012, the Defendant No.1 expressed before the Plaintiffs that the suit land has been recorded in their name and from that Plaintiffs could ascertain about such wrong recording and they filed the suit. 4. The Defendant Nos.1, 2 and 7 to 10 did not contest the suit. RSA No. 392 of 2023 Page 3 of 7 {{ 4 }} The Defendant Nos.11 and 12 state in their written statement have asserted the action of the Settlement Authority and final publication of record to be all correct and have been done after due enquiry. The challenge about the said action and documents after lapse of three decades according to them is not entertainable. 5. The Trial Court on the above pleadings framed seven (7) issues. On going through the evidence on record and upon their examination and assessment, the Trial Corut held the suit to be barred by law of limitation. It also arrived at a decision that the Plaintiffs have failed to establish their title over the suit land. 6. With these findings, the Trial Court when dismissed the suit, the Plaintiffs carried First Appeal. The First Appellate Court set aside the finding of the Trial Corut that the suit is barred by law of limitation. It held that the Plaintiffs having claimed right, title and interest over the suit land and when they claim to be the possession over the suit land, the suit is not barred by limitation. The First Appellate Court however coming to answer the crucial issue as the claim of right, title and interest and possession over the suit land, making an independent assessment of the evidence of both oral and documentary on record came to a conclusion that the description of the suit property is not proper and identifiable so as to enable the Court RSA No. 392 of 2023 Page 4 of 7 {{ 5 }} to pass an effective and executable decree. Having taken this view, the First Appeal has been dismissed. 7. Mr. P.K. Kar, learned Counsel for the Appellants submitted that the First Appellate Court basing upon the evidence on record ought not have arrived at a conclusion as regards the suit property to have not been correctly described as required under Order-7 Rule-3 of the Code. He submitted that the deficiencies pointed out by the First Appellate Court were not such material deficiency so as to term the description given in the plaint as wholly unidentifiable which even if to some extent be said to be remaining deficient could have very well been taken care of during execution proceeding after the decree if would have been so passed. According to him, that could not have been the ground to dismiss the suit. He, therefore, urged for admission of this Appeal to answer above as the questions of law. 8. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and written statement filed by the parties as well as the evidence, both oral and documentary, let in by them. 9. The suit property according to the Plaintiffs is their ancestral property. However, the fact remains that the same has been recorded in the name of the ancestors of the Defendant RSA No. 392 of 2023 Page 5 of 7 {{ 6 }} Nos.1 to 9 as per the Major Settlement Record of Right, which has been published more than 30 years before the institution of the suit. The Sabik Record of Right concerning the land under Khata No.42 has been filed which shows that the land therein was recorded in the name of Dhani Mali @ Mohapatra, the common ancestor of Plaintiffs and Defendant Nos.13 to 15. The certified copy of the Major Settlement ROR is Ext.2. But in the Major Settlement, out of that Ac.0.18 decimals of land under Sabik Khata No.42 only Ac.0.04 decimals of land has been recorded in the name of Dhani Malli, common ancestor of Plaintiffs and Defendant Nos.13 to 15; whereas Ac.0.09 decimals has been recorded in the name of the ancestors of the Defendant Nos.1 to 9. The Plaintiffs have neither pleaded nor proved as to what happened to the rest of Ac.05 decimals of land. The Records of Right of the Major Settlement having been filed, when have been admitted in evidence and marked Exts.1, 2, 10 and 12, interestingly, the plot index has not been proved to enable the Court to go for necessary verification. The boundary of the plot of land measuring Ac.0.18 decimals in the Sabik Record of Right and rest plot as converted during the Major Settlement Operation and recorded in the Major Settlement Record of Right have not been provided. In view of all such evidence on record, the First Appellate Court has arrived at a conclusion that the possibility of the amalgamation and division RSA No. 392 of 2023 Page 6 of 7 {{ 7 }} of land with other plots of other vendors is not ruled out and therefore no effective and executable decree can be pass in favour of the Plaintiffs as prayed for. The view taken being in consonance with the evidence available on record; this Court finds the same to be well in order. 10. In the wake of aforesaid discussion and reasons, the submission of the learned Counsel for the Appellants (Plaintiffs) cannot be countenanced with to say that there arises any substantial question of law for being answered, meriting admission of this Appeal. 11.
Decision
In the result, the Appeal stands dismissed. However, there shall be no order as to cost. Narayan (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 19-Feb-2024 16:26:10 RSA No. 392 of 2023 Page 7 of 7