The High Court
Case Details
IN THE HIGH COURT OF ORISSA : CUTTACK RSA No.567 of 2023 In the matter of an Appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree dated 31.10.2022 and 11.11.2022 respectively passed by the learned Additional District Judge, Kujanga in RFA No.17 of 2019 in confirming judgment and decree dated 22.11.2018 and 04.10.2019 respectively passed by the learned Civil Judge (Junior Division), Kujanga in C.S. No.223-56 of 2016. ……… Ballava Charana Pani :::: Appellant -:: VERSUS ::- Collector, Jagatsinghpur & Another :::: Respondents
Legal Reasoning
Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode. -------------------------------------------------------------------------------- … Mr. D.P. Dash. Advocate For Appellant For Respondents … Mr. G.N.Rout, Advocate --------- CORAM : MR. JUSTICE D.DASH -------------------------------------------------------------------------------- Date of Hearing: 22.03.2024 :: 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 passed by the learned Additional District Judge, Kujanga, Jagatsinghpur in RFA No.17 of 2019. The Appellant as the Plaintiff having filed the suit (Civil Suit No.223-56 of 2016) in the Court of the Civil Judge, Kujanga, as it was then, for declaration of his easementary right of way over the land described in schedule ‘B’ owned by the Respondents arraigned therein as the Defendants and for permanent injunction had faced the dismissal of the same. The Appellant as the Plaintiff thus being non-suited had carried the Appeal under section 96 of the Code which too has been dismissed. 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 he is the owner of the land described in schedule ‘A’ of the plaint. He claims to be using the land described in schedule ‘B’ of the plaint as his passage to approach his land in schedule ‘A’. It is stated that schedule ‘B’ land belongs to the Defendants and is situated in between the land of the Plaintiff on one side Page 2 of 7 and the public road on the other. The Plaintiff has his residential house over schedule ‘A’ land. It is his case that since the time of his forefathers, the land in schedule ‘B’ is being used as passage for ingress and egress to his own land over which the house stands and that has never been interfered with at any point of time though it was with the knowledge of the Defendants. Since the Defendant No.2 attempted to lease out the land in schedule ‘B’ to different persons of the village and thereby, the Plaintiff apprehended that his right of way was likely to be infringed, he filed the suit. The prayers made in the suit are as under:- “(a) Let the easementary right of the way over the suit schedule ‘B’ land be declared in favour of the Plaintiff. (b) Let the Defts their men, agents, henchmen or anybody claiming under them be permanently restrained from creating any sort of obstruction over the suit and schedule ‘B’ land in ingresing and outgresing of the Plaintiff from the dwelling house existing over the schedule ‘A’ land to the village public road.” 4. The Defendants without filing any written statement come to contest the suit. Page 3 of 7 5. The Trial Court on going through the evidence, both oral and documentary, let in by the Plaintiffs and even in the absence of any such evidence, being let in by the Defendants to counter, upon their examination and evaluation in the backdrop of the pleadings in the plaint, arrived at a conclusion that the Plaintiff has no such right of way over the ‘B’ schedule land. 6. The Plaintiff thus being non-suited having carried the First Appeal, the First Appellate Court, upon examination of the evidence and their assessment affirmed the finding of the Trial Court that the suit is liable to be dismissed. 7. The Appeal is admitted to answer the following substantial question of law:- “Whether the Trial Court as well as the First Appellate Court on the face of the pleading of the Plaintiff which have remained uncontroverted as also the evidence let in by the Plaintiff being not countered through any evidence being let in by the Defendants, still are right in ruling that the Plaintiff that he has no natural right of way over the land under Schedule-‘B’ belonging to the State.” Page 4 of 7 8. Heard Mr. D.P. Dash, learned counsel for the Appellant and Mr. G.N.Rout, learned counsel for the Respondents at length. 9. Keeping in view the submission made, I have carefully read the judgments passed by the Courts below. I have read the averments taken by the Plaintiff in the plaint and have gone through the evidence, both oral and documentary tendered by the Plaintiff. 10. It is found that in the plaint, the Plaintiff besides indicating the width of the land over which he claims the right of way, which is a portion from out of a big chunk of land measuring Ac.3.65 dec. of land has provided a sketch map which forms the part of the plaint. The land of the Plaintiff is under Plot No.711/833 which as stated by the Plaintiff measures Ac.0.04 dec. which is a piece of homestead land which has been indicated in the said sketch map in red colour. The strip of the land over which the Plaintiff claims the natural right of way is under Plot No.942 and such strip of land is stated to be of the length of 270 links and having the width of 19 links. It is further indicated that towards the West of the said strip of land, there adjoins the road. At paragraph two (2) of the plaint, the Plaintiff Page 5 of 7 states that schedule ‘B’ land over which he claims the right of way forms a part and parcel of the schedule ‘A’ land which is being used and possessed by him as a passage to schedule ‘A’ land; whereas in paragraph-3 of the plaint, it has been stated that schedule ‘B’ land belongs to the Government. The record of right of schedule ‘B’ land has been admitted in evidence and marked Ext.2. It is under Khata No.491. That Khata does not carry the plot of land being numbered as 947. When the Plaintiff being examined as P.W.1 and his two other witnesses examined as P.W.2 and P.W.3 have stated that schedule ‘B’ land is out of Khata No.491 and Plot No.492, in the trace map (Ext.3) the homestead land of the Plaintiff, i.e., Plot No.711/833 is not indicated. The length and breadth of that strip of the land over which the right of way is claimed is not shown in Ext.3. But that area is said to be measuring Ac.0.5 dec. which is out of a big area of Ac.3.65 dec. over Plot No.942. The description of the land in Schedule-B of the plaint is completely different, when it is indicated in the plaint that the Plot number is 742. Even assuming that such was an inadvertent mistake in putting the number of plot, the trace map proved from the side of the Plaintiff and admitted in evidence and marked Page 6 of 7 Ext.3 does not indicate the homestead plot of the Plaintiff as shown in the plaint to be 711/833. The said sketch map (Ext.3) does not carry the specification as to the length and width of that strip of land over which the Plaintiff claims the right of way. With all these discrepancies going unexplained, the Trial Court as well as the First Appellate Court are right in holding that in the suit as laid the right of natural way of the Plaintiff over the land in schedule ‘B’ cannot be so declared. 11. In the wake of aforesaid discussion and reasons, the substantial question of law stands answered against the Plaintiff which in turn leads this Court to confirm the judgments and decrees passed by the Trial Court as well as the First Appellate Court in dismissing the suit. 12. Resultantly, the Appeal stands dismissed. There shall
Decision
be, however be no order as to costs. Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 29-Apr-2024 19:09:16 (D. Dash), Judge. Page 7 of 7