Civil Suit No. 411 of 2016 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.176 OF 2021 In the matter of an Appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 05.10.2021 and 11.10.2021 respectively, passed by the learned District Judge, Jajpur in R.F.A. No.10 of 2019 setting aside the judgment and decree dated 27.12.2018 and 05.01.2019 passed by the learned Senior Civil Judge, Jajpur in Civil Suit No.411 of 2016. ---- Dolagobinda Sahoo …. Appellant Asit Kumar Sahoo & Others …. Respondents -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): ========================================================= For Appellant - For Respondents - -
Legal Reasoning
Mr.Prafulla Chandra Das, Advocate Mr.Biswambar Mohanty Advocate, Mr.Somanath Nanda, Advocate. CORAM: MR. JUSTICE D. DASH Date of Hearing: 06.03.2024 :: Date of Judgment: 12.03.2024 D.Dash,J. The Appellant, by filing this Appeal, under Section- 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), has challenged the judgment and decree dated 05.10.2021 and R.S.A. No.176 of 2021 Page 1 of 8 {{ 2 }} 11.10.2021 respectively, passed by the learned District Judge, Jajpur in R.F.A. No.10 of 2019. The Appellant as the Plaintiff had filed the suit (Civil suit No.411 of 2016) praying therein to declare that the land described in the schedule of the plaint forms a part of the western side of Major Settlement Plot No.238 and as such to declare his right, title, interest and possession over the same; seeking further declaration that the Major Settlement Record of Right published in the name of the Respondents (Defendants) is illegal and wrong and further praying for permanent injunction. The suit having been decreed, the Respondents (Defendants) having suffered therefrom had carried the Appeal under section-96 of the Code and the same has been allowed. Hence, the present Second Appeal is at the instance of the Appellant (Plaintiff) who has been non-suited by the First Appellate Court. 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 the suit land measures Ac.0.01 decimals, 6 kadi, 9 biswa13/1 kranta out of total area of Ac.0.05 Page 2 of 8 R.S.A. No.176 of 2021 {{ 3 }} decimals. On the western side, land appertaining to sabik plot no.109 under sabik Khata no.109 corresponding to Major Settlement Khata no.459 part of Major Settlement plot no.238 measuring Ac.0.32 decimals situates. The suit land situates adjoining the house, shop room of the Plaintiff, and he is staying in the house with his family. It is stated that the suit land was acquired by his father Krushna Chandra Sahoo by way of purchase from Puni @ Purna Chandra Behera by registered sale deed dated 24.12.1960. He having been delivered with the possession of the said land, the Plaintiff has been in possession of the same since the time of his father all along. The father of the Plaintiff was using the suit land adjoining his ancestral homestead in order approach the public road which was to the knowledge of the ancestors of the Defendants. It is stated that the suit land was /is the only and one passage for the Plaintiff to approach the public road from his ancestral homestead. The suit land was being used as such all along. When the matter stood thus, Krushna died leaving behind his three sons namely, Brahmananda, Sambhunath and Dolagobinda and six daughters, namely, Premalata, Haramani, Tiki, Paramani @ Tutu, Satyabhama, Chhabila and Kabita, who were born through his two wives namely, Rukmani and Ramamani and they all succeeded to his property. After the death of Krushna, dissention arose in the family. So, Title Suit Page 3 of 8 R.S.A. No.176 of 2021 {{ 4 }} No.107 of 1993 was filed for partition. The suit ended in compromises and the suit land has fallen to the share of the Plaintiff. The Plaintiff continued to exercise his right of user and enjoyment over the said land adjoining the homestead land as the path to approach the public road. The Plaintiff states to have derived an absolute and settled right over the said land. In the meantime, the Plaintiff filed Revision No.250 of 2015 before Commissioner settlement for rectification of the M.S. ROR No.459 which is pending. As the Defendants created problem in the enjoyment of the said property, which the Plaintiff was using as the pathway to approach the public road since the time of his father, the suit came to be filed. 4. The Defendant Nos.1 and 2 while traversing the plaint averments stated that the total land under Khata No.101, Plot No.109 area was Ac.0.05 decimals, out of which Kartik Sahoo, father of the Defendant No.1, Jagabandhu Sahoo, father of the Defendant No.2, Krushna Chandra Sahoo father of the Plaintiff had purchased Ac.0.01.6.9 biswas and 13/1 Krant each on one date i.e. 24.12.1960. Accordingly, each possessed the land which they purchased. It is further stated that the Plaintiff has amalgamated his purchased area with his own homestead and has constructed a building over the same, which is on the eastern portion of the purchased area of Defendant No.1 R.S.A. No.176 of 2021 Page 4 of 8 {{ 5 }} adjoining his homestead and middle portion is in possession of the Defendant No.2 since long. During preparation of the Major Settlement Record of Right, the vacant area of the purchased land was recorded in the name of Jagabandhu Sahoo and Kartika Sahoo, fathers of the Defendant Nos.1 to 7 under Khata No.459, Plot No.238 measuring Ac.0.032 decimals and rest land has been amalgamated with the homestead land of the Plaintiff which has been recorded in his name. The Defendant No.2 having filed a mutation case, his land has been recorded separately and the extent of the same is Ac.0.016 decimals under Khata No.393/2015, Plot No.238/2010 over their purchased area without interruption. The Defendant No.1 has fixed the iron gate in front of the entrance of his area and the Defendant No.2 has put a wooden gate at the front. It is stated that the Plaintiff and Defendants are possessing their respective land as per their sale deeds and the Plaintiff having already amalgamated his purchased land with his own homestead has been falsely advancing the claim over the land of the Defendant. 5. The Trial Court upon examination of the evidence and their evaluations in the backdrop of the rival pleadings, went to declare the suit land to be on the western side of the M.S. Plot No.238 and thereby declared the Plaintiff’s right, title, interest, Page 5 of 8 R.S.A. No.176 of 2021 {{ 6 }} and possession over the same. The Defendants having suffered from the said judgment and decree then moved the First Appellate Corut. The First Appellate Court examining the evidence on record has come to a conclusion that the Plaintiff has failed to prove that the suit strip landforms part of the western side of the Plot No.238. The Plaintiff’s suit has thus been dismissed. 6. The Appeal has been admitted to answer the following substantial question of law: - Whether the suit land forms a part of the Sabik Plot No.109 corresponding to Hal Plot No.237 and 238 contrary to the map published by the settlement authority and sufficiently established by direct evidence in the suit? 7. Heard learned Counsel for the Appellant and learned Counsel for the Respondent at length. 8. Keeping in view the submission made, the plaint being perused, the suit land is found to have been described as under:- (As delineated in the trace map annexed herewith) “SUIT LANDS Mouza Rajpur Pragana Jajpur, 8072No. Khata 101 Plot 109 Area Ac.01.6 kadis 9 Biswas 13/1 Kranta out of total Page 6 of 8 R.S.A. No.176 of 2021 {{ 7 }} Touzi. area of Ac.0.05decs. from the western side as per the sketch map shown in Red attached with the plaint.” 9. The sketch map given at page -5 of the plaint shows that the Municipal Road runs adjoining Plot No.236, 237, 238 and 239. The strip of land which has been said to be the suit land is stated to be part of the land under plot no.238. When the Plaintiff’s claim is that he is using the strip of land in order to approach the Municipal Road, it reveals that the land under Plot No.237 as the direct entry to the Municipal Road and in fact its entire front portion joins the Municipal Road. The strip of land is under M.S. Plot No.238 and that is not the recorded land of the Plaintiff. As against specific case of the Defendants that the homestead land of the Plaintiff and the land which had been purchased by the father of the Plaintiff measuring Ac.0.01.6 Kadies 9 Biswas 13/1 Kranta has been amalgamated, the Plaintiff has neither proved that the said strip of land which he now claims is a part of the said purchased land nor has proved that it has not been amalgamated with his homestead land. In that view of the matter, the First Appellate Court has rightly dismissed the suit. R.S.A. No.176 of 2021 Page 7 of 8 {{ 8 }} The substantial question of law is accordingly answered in favour of the Defendants which in turn leads this Court to place the seal of confirmation upon the judgment and decree passed by the First Appellate Court. 10. Resultantly, the Appeal stands dismissed. No order as to cost. Narayan (D. Dash), Judge. Signature Not Verified Digitally Signed Signed by: NARAYAN HO Reason: Authentication Location: OHC Date: 19-Mar-2024 13:02:37 R.S.A. No.176 of 2021 Page 8 of 8