Civil Suit No. 16 of 2017 · The High Court · 2020
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK A.F.R. R.S.A. No.220 of 2020 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 7th March 2020 and 21st March 2020 respectively passed by the learned District Judge, Puri in R.F.A. No.19 of 2019 confirming the judgment and decree dated 07.02.2019 and 19.02.2019 respectively passed by the learned Civil Judge (Junior Division), Pipili in Civil Suit No.16 of 2017. ---- Chhabindra Mallick …. Appellant -versus- Asis Kumar Das & Others …. Respondents Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): ======================================================= For Appellant - Mr. Ashutosh Mishra, For Respondents - Mr. N.K. Barik, (Advocate). (Advocate). CORAM: MR. JUSTICE D. DASH Date of Hearing : 19.03.2024 :: Date of Judgment: 15.04.2024 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 7th March 2020 and 21st RSA No.220 of 2020 Page 1 of 15 March 2020 respectively passed by the learned District Judge, Puri in R.F.A. No.19 of 2019.
Legal Reasoning
The Respondent No. 1 to 4 as the Plaintiffs had filed the suit (Civil Suit No.16 of 2017) in the Court of learned Civil Judge (Junior Division), Pipili. The suit is for permanent injunction against the Appellant (Defendant No.1) restraining him to make any interference over the suit land which provides the access to the Plaintiffs and for their passing and repassing in approaching the main public road and from making fence, installing wooden cabins and thereby making any sort of blockage over the suit land. The suit stood decreed permanently injuncting the Appellant (Defendant No.1) to make any interference with the right of access and passing and repassing of the Plaintiffs over the suit land under Plot No.176 from all points of the land under Plot No.174 with further direction to vacate the land. The Appellants as the Defendant Nos.1 and 2 since suffered from the said judgment and decree passed by the Trial Court, carried the Appeal under section-96 of the Code. That Appeal has also been dismissed. Hence, in the present Second Appeal the Appellant (Defendant No.1) has called in question the judgments and decrees passed by the Trial Court as well as the First Appellate Court. RSA No.220 of 2020 Page 2 of 15 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. Plaintiffs case is that the southern adjacent land to the suit land belongs to the Plaintiffs and Defendant Nos.3 to 5. Originally, said land belongs to one Nabin Ch. Das standing recorded under consolidation Khata No.53, Chaka No.74 assigned with Plot No.174 measuring Ac.0.88 decimals. Nabin Chandra in order to meet legal necessity, sold the western portion measuring Ac.0.08 decimals out of Ac.0.88 decimals to Defendant Nos.3 to 5, who are in possession of their land since that time onwards and have mutated the said land in their names. The suit land which is a piece of Government land has been shown being marked in ‘Green’ in the sketch map appended to the schedule of the plaint. The recorded tenant- Nabin Chandra died in the year 2014. The Plaintiffs being their legal heirs and successors inherited the suit land together with other immovable properties and became the owners of the same. The suit land under Plot No.176 is a road-side land. The Plaintiffs placed about ten cabins over the end of the northern portion of their land under Plot No.174 for renting out those to the persons for running business. Tenants have been inducted; they are in occupation in those cabins. Their customers are RSA No.220 of 2020 Page 3 of 15 coming to and returning from the cabins by passing and repassing over the suit land from the road. The main road for the Plaintiffs to come over is situated on the side intervened by the suit land belonging to the Government under Plot No.176. The Plaintiffs have their house on the western side of their land and three pucca and asbestos roofed houses have been constructed. The Defendants are in no way connected with the suit land. It is stated that they without having any right wanted to construct shed over the suit land. As a result of which, the Plaintiffs being the abutting owner faced a lot of problem as their right of access to the road from all points of their land was infringed. Such right of ingress and egress from all points of their land to the road by-passing over the suit land was substantially interfered with by such overt act of the Defendant Nos.1 and 2, so also the tenants in occupation of the cabins faced the difficulty and lot of problem for running their business. When the Defendant Nos.1 and 2 tried to make fence over the suit land, the matter was reported to the local police by the Plaintiff No.1. However, the local police being gained over by the Defendant Nos.1 and 2 did not take any step. It is stated that the Defendant Nos.1 and 2 have already blocked the main gate of the Plaintiffs by putting stones and sands thereon and thereby they did not permit the Plaintiffs to have the entry to their land. The Defendant No.1 has his own house in the said RSA No.220 of 2020 Page 4 of 15 mouza over the land under Plot No.175/223. Defendant No.2’s parental house is over the land under Plot Nos.226 and 227 under Khata No.2 in mouza Jayapur Hat. Be that as it may, the Defendants colluded with each other and encroached suit land which is a road-side land having the kisam as ‘Nayanjori’. They wanted to install certain temporary wooden sheds forcibly over the suit land. So, ultimately the Plaintiffs were compelled to file the suit seeking relief as aforestated. 4. The Defendant Nos. 1 & 2 in their written statement while traversing the plaint averments stated that the Plaintiffs have absolutely no right, title, interest and possession over the suit property. They state that no obstruction has been caused over the portion of the land under Plot No.174 owned the Plaintiffs. The Plaintiffs have raised boundary wall on the northern extreme boundary of the land under Plot No.174 keeping a gate of 15 feet width on the said boundary wall towards west facing to the north and to the further north of northern boundary wall, the Plaintiffs have no land. It is next stated that as the Plaintiffs have raised their boundary wall to the north of the land under Plot No.174 leaving no space to the further north of the boundary wall, their plea as to placing the cabins over their plot of land is false. The Defendant No.1 has got the residential RSA No.220 of 2020 Page 5 of 15 house and shop room over a portion of the suit property for last 50 years. The Plaintiffs were / are not using the entire frontage of suit land under Plot No.174 on the northern side in coming over the public road. The Plaintiffs have been using the 15 feet width passage leading from their main gate to the public road which remains open without any obstruction. The Plaintiffs have raised boundary wall of 5 feet on the north of their land over Plot No.174 running east to west without leaving any space to the further north. It is further stated that beyond the grill gate fixed on the northern boundary wall towards the west by the Plaintiffs, there is 15 feet width of passage over a portion of the suit land which lies is front of their iron grill gate and that adjoins the public road on the north. The Plaintiffs have been using said 15 feet passage to approach their land through the main gate from their house standing over western portion of the land under Plot No.174. There is absolutely no obstruction over that passage. With these pleadings, the Defendant brought to non-suit the Plaintiffs. 5. The Trial Court on the above rival pleadings, framed as many as three (3) issues. The core issue framed by the Trial Corut is whether the Plaintiffs have any right, title and interest over the suit land and if so then the extent of their interest. When the Plaintiffs do not claim right, title and interest over the RSA No.220 of 2020 Page 6 of 15 suit land which is a piece of Government land which adjoins the public road at one side and land of the Plaintiffs on the other; they claim the right of approach / access to the public road through the suit land. The proper issue ought to have been whether Plaintiffs are having the right of natural way over the suit land in order to approach from each point northern side of their land to the public road by passing over the suit land. And if the Defendants have caused any obstruction over that right of the Plaintiffs and thereby the Plaintiffs right in that way has been infringed for which a decree for injunction is to be passed. Be that as it may, the Trial Court upon examination of evidence and their evaluation has concluded that the Plaintiffs has the natural right of way over the suit land to approach the Pipili-Jatni road from their own land under Plot No.174. This conclusion has led the Trial Court to decree the suit in granting the reliefs as aforesaid. 6. Defendant Nos.1 and 2 having carried the First Appeal; the First Appellate Court has affirmed the said finding and thereby confirmed the judgment and decree passed by the Trial Court. 7. Admittedly, the suit land is a piece of Government land. Nobody deny the fact that the suit land is situated in between the land of the Plaintiffs under Plot No.174 and the Pipili-Jatni RSA No.220 of 2020 Page 7 of 15 road. on the date of hearing, the learned Counsels for the parties being heard for the sometime, this Court upon perusal of the plaint and written statement and on going through the evidence tendered by the parties, reframed the substantial question of law which reads as under:- “Whether the Plaintiffs with their own showing in the plaint as also the evidence tendered in support of the said facts concerning user of their own land which is adjacent to the piece of Government land abutting the road could have maintained the suit when on the date of institution of the suit, they by their own acts and conduct even without any obstruction being there from the side of the Defendants were not in a position to exercise the natural right over that land to approach the main road and when in fact they had not exercised that right even in near past?”
Legal Reasoning
8. Heard Mr. A. Mishra, learned Counsel for the Appellant and Mr. N.K. Barik, learned Counsel for the Respondent Nos. 1. Mr. Mishra, learned Counsel for the Appellant (Defendant No.2) placing the plaint and inviting the attention of this Court to the sketch map provided in the plaint which is a part of the plaint as also the evidence of the Plaintiff No.1 examined as P.W.1 submitted that the Plaintiffs by their own conduct and act, when had never exercised such natural right over the suit land since long, they could not have maintained the suit claiming that natural right of way over the suit land which had long since been voluntarily abandoned or waived. RSA No.220 of 2020 Page 8 of 15 Mr. Barik, learned Counsel for the Respondents (Plaintiffs) submitted that in view of the positioning of the suit land, when the Plaintiffs have the natural right of using the suit land as their way of approach from each point of their frontage of their land to the public road as they claim that the Defendants are infringing said right, which is not denied by the Defendants, the Courts below have rightly decreed the suit. 9. 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. 10. As already stated, the positioning of the suit land under Plot No.176 which is a piece of Government between the Pipili- Jatni road and the land of the Plaintiffs under Plot No.174 stands undisputed. In fact that has been shown in the red sketch map appended to the plaint forming part of it. It has been the case of the Plaintiffs that to the northern side of their land under Plot No.174, this suit land under Plot No.176 is situated and to its further north, the Pipili-Jatni road run. This sketch map given in the plaint further indicates that towards the western side of land under Plot No.174, the house of the Plaintiffs situates and in front of the house, they have the RSA No.220 of 2020 Page 9 of 15 opening to the suit land and that opening is through main gate fixed by them. The major portion of the frontage of the land under Plot No.174 as per the case of the Plaintiffs has a boundary wall up till the gate point and the rest small portion of the northern to the further west of the gate frontage, there also stands the boundary wall. Thus, it is seen that as per the case of the Plaintiffs, they have the opening from their land to the suit land only through the main gate and over the rest portion of the northern frontage of their land under Plot No.174 they have erected the boundary wall. It is not stated by the Plaintiffs that Defendants are causing obstruction over the land which is situated beyond the main gate of the Plaintiffs on its northern side in having their access to Jatni-Pipili road. The Plaintiffs assert that the obstruction is over the land under Plot No.176 which is situated adjoining the boundary wall of the Plaintiff on the north side of their land running east to west. It is not specifically stated that in front of their gate, there is any obstruction. The Plaintiff No.1 examined as P.W.1 in his evidence has admitted the following facts:- “It is a fact that there is a boundary while situated in the norther side of my Plot No.174. One 15 feet wide road was also attached to northern side boundary wall which is adjoining to the Pipili-Jatni road. I have RSA No.220 of 2020 Page 10 of 15 also fixed the iron grill gate on the boundary wall which is approaching to the said road. I have constructed the boundary wall along with the iron grill gate prior to the filing of this case. I have installed 10 nos. of cabins in the southern side of my boundary wall which are facing towards north. I have not installed the cabins over the suit land. I have installed the cabins prior to filing of the suit.” Thus, here is a case, where the Plaintiffs prior to the filing of the suit was not exercising his natural right of way over that portion of the Government land under Nayanjori kisam situated on the northern side of their land which abuts Pipili- Jatni road. Their case is that having put pucca boundary wall over the major portion of their land on the northern side adjoining the suit land under Plot No.176 they have only kept a small portion vacant and over there they have put the iron grill gate and through that gate by using the portion of the land under Plot No.176 which is Government land, on the north they have been approaching the Pipili-Jatni road to the further north of the suit land. 11. It is no doubt the settled position of law that where the land of a person adjoins a piece of road-side land belonging to the State which abuts the road, he has the right of access to the road from all points of the frontage of his land through that road-side land. But here as it is seen that the Plaintiffs prior to the filing of the suit had constructed the boundary wall over RSA No.220 of 2020 Page 11 of 15 major portion of their frontage adjoining the suit land which joins the main road, keeping some opening towards the suit land under Plot No.176 in order to approach the public road by crossing over that portion or stretch of the land under Plot No.176. The Plaintiff do not allege that the Defendant Nos.1 and 2 are causing any obstruction on that patch of land under Plot No.176 running from the main gate of the Plaintiffs uptill Pipili-Jatni road. So, even though the Plaintiffs could have exercised their natural right of way to approach the Pipili-Jatni road from each point of their frontage there on the northern side of their land, they by their own conduct and acts have voluntarily abandoned and waived to exercise that natural right of way over that land from their frontage as on the northern side of their the land under Plot No.174, they have put pucca boundary wall putting a permanent divide between their land and the suit land exhibiting thereby that they do not intend to exercise such right of natural way over the land under Plot No.176. The Plaintiffs thus are found to have voluntarily chosen or opted not to exercise the natural right of way over the entire land under the Plot No.176 except that patch of land under Plot No.176 running from their gate on the northern side frontage towards the western side of their land uptill the Pipili-Jatni road and only through that to approach the said road. The right they were having and could have RSA No.220 of 2020 Page 12 of 15 exercised having thus been abandoned / waived prior to the suit, the Plaintiffs cannot be allowed to suddenly rise to exercise the said right as per their convenience at any time they desire. In a suit where the Plaintiffs claim their natural right of way over a road-side land and seeks to injunct the person complaining that he has infringed their natural right of way over the piece of Government land in front of their land abutting the road and in order to approach the public road have to plead and prove that had there been no obstruction from the side of those persons over that piece of Government land, they would have been in position to exercise their natural right of way over that portion of the Government land in order to approach the public road which they had been so exercising but are not in a position to so exercise only for the obstructions caused. In the case at hand on the face of the pleading as also the evidence of the Plaintiff No.1 himself examined as P.W.1 when prior to the suit even before the alleged obstruction by the Defendant Nos. 1 & 2, the Plaintiffs were not exercising natural right of way over that portion of the land under Plot No.176 over which now they claim that the Defendants are causing obstruction and on the other hand, they having their gate with the opening towards the Government there are exercising their RSA No.220 of 2020 Page 13 of 15 natural right of way over that strip of Government land running from their gate point to the public road; the suit seeking the relief of permanent injunction against the Defendant Nos.1 and 2 placing them in the position of obstructionist over the rest portion of the land under Plot No.176 has no foundation in the eye of law. Therefore, the present suit against the Defendant Nos. 1 and 2 seeking the reliefs could not have been maintained at the instance of the Plaintiffs. The Trial Court as well as the First Appellate Court being oblivious of such an important position appear to have gone wrong in decreeing the suit. 12. For the wake of aforesaid, the substantial question of law is answered against the plaintiffs and that paves the way for this Court to set aside the judgments and decrees passed by the Trial Court confirmed by the First Appellate Court. 13. In the result, the Appeal is allowed. The judgments and decrees passed by the Trial Court as well as the First Appellate Court are hereby set aside. Consequently, the suit filed by the Plaintiffs (C.S. No.16 of 2017) stands dismissed. In the peculiar facts and circumstances of the case, there shall, however, no order as to cost is passed. It is, however, made clear that the dismissal of the suit of by the Plaintiffs in declining them to grant the reliefs as prayed RSA No.220 of 2020 Page 14 of 15 for, shall in no way stand on the way of the lawful owner of the land under Plot No.176 (State of Odisha) to proceed against the Defendant No.1 and take action as per law in exercising its right of ownership. (D. Dash), Judge. Narayan Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 23-Apr-2024 18:04:28 RSA No.220 of 2020 Page 15 of 15