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2002 DIGILAW 538 (ORI)

BALAVADRA DAS v. SUDHANSU SEKHAR MISHRA

2002-08-23

L.MOHAPATRA

body2002
L. MOHAPATRA, J. ( 1 ) PLAINTIFF is the appellant before the Court against a reversing judgment. The suit was filed for mandatory injunction directing removal of encroachment made by the defendant-respondent and for damages. ( 2 ) CASE of the plaintiff-appellant is that in the year 1950-51 a colony was established over several plots and all the plots are under Khata Nos. 43 and 70 in village Kundhaibenta Sahi. Said colony plan bearing No. 125 was prepared by the Puri Municipality-defendant No. 1. The plan consists of several holdings owned by different individuals and the plaintiff is the owner in possession of holding No. 36 plot Nos. 127 and 128. Plaintiff has got his residential house on the aforesaid two plots. Holding No. 37, plot Nos. 129 and 130 covered under the colony plan is owned and possessed by defendant No. 2. Holding No. 35, plot Nos. 123, 124 125 and 126 under the colony plan belong to the defendants 3 and 4. The specific case of the plaintiff is that the plan of the colony prepared by the Puri municipality indicates a road in front of plot Nos. 118 to 142 on the eastern side having 21 feet breadth. The above plot Nos. 118 to 142 situate in one line and the said road in front of the plots connect the main road at both ends i. e. northern end and southern end. The road in front of plots under Khata Nos. 43 and 70 was transferred to defendant No. 1 by way of gift deed dated 6. 2. 1955 by the then owner Mahanta Gadadhar Ramanuja Das and by virtue of the such gift Puri Municipality became owner of the said road. The road that had been kept for use of residents of the colony was encroached by the defendants causing inconvenience to the residents of the colony. Further allegation in the plaint is that the road is the only passage to the houses of the individuals who are occupying plot Nos. 118 to 142 and they have no other way to come to the main road. Since the road belongs to the defendant No. 1 every individual owner of the plots has right to use the said road as passage to come to the main road. The plot Nos. 118 to 142 and they have no other way to come to the main road. Since the road belongs to the defendant No. 1 every individual owner of the plots has right to use the said road as passage to come to the main road. The plot Nos. 127 and 128 belonging to the plaintiff situate in the middle of the Basti and defendant No. 2 who is the owner of plot Nos. 129 and 130 has encroached upon the road by blocking the same entirely since 1974. Similarly defendants 3 and 4 owner of Plot Nos. 123, 124, 125 and 126 have also encroached upon the road since 1972 and encroachment has been made to such an extent that the same cannot be used by other inhabitants. It is the case of the plaintiff that he had sent a petition to the Municipality on 17. 12. 1974 making such allegations and on the basis of the same Encroachment Case No. 54 of 1974 was started by the Municipality against the defendants and till filing of the suit no action had been taken by the Puri Municipality. ( 3 ) DEFENDANTS-RESPONDENTS filed written statement and defendant No. 1 in his written statement admitted that it is the owner of the road which has been encroached by the other defendants. It was also contended by defendant no. 1 that plaintiff had also encroached the disputed road for which action was intended to be taken against him and before any action could be taken plaintiff removed the encroachment. Defendant No. 2 in his written statement denied all the allegations made in the plaint and challenged the maintainability of the suit at the instance of the plaintiff. Said defendant No. 2 denied existence of a road and consequently denied alleged encroachment made by him. Further case of the defendant No. 2 is that he has constructed boundary wall in the same line as per the construction of the plaintiff's boundary wall and there is existence of road in front of plot Nos. 118 to 142 in the eastern side which can be used by the plaintiff to come to his house. It is the case of the defendant no. 2 that he has taken delivery of possession of both the plots from the Math in the month of March, 1958. 118 to 142 in the eastern side which can be used by the plaintiff to come to his house. It is the case of the defendant no. 2 that he has taken delivery of possession of both the plots from the Math in the month of March, 1958. Defendant No 3 also filed his written statement denying existence of any road in front of plot Nos. 118 to 142 and at the time he obtained the lease of the land in the year 1958 there was no existence of any road in the map and the entire area was a sandy track. Other stand taken by the defendant No. 3 is more or less same as defendant No. 2. Defendant No. 4 also filed his written statement denying the plaint allegations as well as the existence of any road to the eastern side of Basti in Plot Nos. 118 to 142. Allegation of encroachment has also been denied in the written statement. ( 4 ) ON the basis of the pleadings of the parties the trial Court framed seven issues and Issue No. 4 relates to the alleged encroachment by defendants 3 and 4 over the road in front of plot Nos. 118 to 142 on the easterm side. While answering this issue on consideration of oral and documentary evidence the trial court found that there was a road of 20 feet width from north to south in front of the plots as mentioned in the plaint and defendants 2. 3 and 4 have encroached upon the disputed road at the time of construction of their respective houses. The trial Court further found that in view of such encroachment it is not possible on the part of the plaintiff to go to his house. Trial Court also found that the defendant No. 1, Puri Municipality, is the owner of the road and the plea of adverse possession by defendants 2, 3 and 4 was not accepted. On the above findings, the trial court allowed the suit. ( 5 ) CHALLENGING the judgment and decree of the trial court defendants 3 and 4 filed Title Appeal No. 11/7 of 1986/84 and defendant No. 2 filed Title Appeal No. 12/4 of 1985/ 84 in the Court of the learned Additional Sub-Judge-cum-Addl. C. J. M. , Puri. On the above findings, the trial court allowed the suit. ( 5 ) CHALLENGING the judgment and decree of the trial court defendants 3 and 4 filed Title Appeal No. 11/7 of 1986/84 and defendant No. 2 filed Title Appeal No. 12/4 of 1985/ 84 in the Court of the learned Additional Sub-Judge-cum-Addl. C. J. M. , Puri. Both the appeals were heard together and in a common judgment the appeals were allowed and the suit filed by the plaintiff-appellant was dismissed. ( 6 ) THE lower appellate Court found that the building and boundary wall of defendants 2, 3 and 4 are in the same line with that of the building and boundary wall constructed by one Narasingh Mohapatra and the said building and boundary was of Narasingh is the olde'st construction in the area where the suit land is situated. Said Narasingh Mohapatra has encroached the entire road on the north-eastern end and therefore it was difficult to come to a conclusion that actually the defendants 2, 3 and 4 have encroached upon the same portion of the road set apart exclusively for construction of Municipal Road and by their so called encroachment, the plaintiff unable to go to the public road on the northern side of his house. The lower appellate Court further found that not only the defendant No. 1, Puri Municipality has denied allegations of encroachment made by the defendants 2 to 4 but also found that the plaintiff has himself encroached upon the road. The lower appellate Court further held that in absence of any material to indicate the extent of encroachment made by defendants 2 to 4 the suit is not maintainable. The lower appellate Court also found from the evidence on record that it was not possible to show as to how much area had been set apart for construction of municipal road in that colony and on the above findings, allowed the appeals. ( 7 ) AT the time of admission this Court formulated the following substantial questions of law to be adjudicated at the time of hearing. (I) If the defendant Nos. ( 7 ) AT the time of admission this Court formulated the following substantial questions of law to be adjudicated at the time of hearing. (I) If the defendant Nos. 1 to 3 encroached the Municipality road which can be ascertained only by measurement by a Civil Court Commissioner and none of the parties applied for appointment of Commissioner but the trial Court found out the encroachment, but the appellate Court held that plaintiff has failed to prove the encroachment, in that case the duty casts on the Court to direct the parties to take a survey-knowing Commissioner to find out encroachment or no encroachment by measurement, but the appellate Court without directing the parties to take a Commissioner or remanding the suit to lower Court with such direction has erred in law dismissing the suit on the ground that plaintiff has failed to establish encroachment. (ii) Finding of the appellate Court that the plaintiff has no cause of action and locus stand/ to file the suit for removal of encroachment of Municipality road and the Municipality is the proper authority to take action for removal of encroachment is erroneous in law inasmuch as the plaintiff having right of passage as matter of necessity on Municipality road has right to sue if his right is infringed and passage is blocked by encroachment made by the defendant No. 3. (iii) The appellate court acted illegally and against the law by using pleading of the defendant No. 1 against the plaintiff to hold that plaintiff himself encroached some portion of road and as such he being wrong doer is not entitled to relief, although it is settled position of law that the mere pleading is no evidence against the adverse party as it is not tested by cross-examination. ( 8 ) REFERRING to the substantial questions of law on which the appeal has been admitted Sri Patnaik, learned counsel appearing for the appellant contended that the fact of gift made by Math in favour of defendant No. 1 -Puri Municipality under Ext. 6 has not been disbelieved by either Court. He further submitted that the lower appellate Court did not find that the defendants have not encroached upon the road but dismissed the suit of the plaintiff on the ground that there was no evidence on record indicating the extent to which such encroachment has been made by defendants 2 to 4. 6 has not been disbelieved by either Court. He further submitted that the lower appellate Court did not find that the defendants have not encroached upon the road but dismissed the suit of the plaintiff on the ground that there was no evidence on record indicating the extent to which such encroachment has been made by defendants 2 to 4. He further submitted that the finding that one Narasingh Mohapatra had also encroached the entire road and he was not made a party to the suit is not relevant for the purpose of deciding the case. Plaintiff had no grievance against him since on the northern side encroachment has been made by the defendants 2 to 4 blocking passage to the main road which is to be used by the plaintiff. Merely because defendants 2 to 4 have constructed houses in the same line as that of Narasingh Mohapatra who had first constructed house in the locality cannot be a ground to dismiss the suit. He further submitted that by the time the suit was filed tne plaintiff had already removed encroachment made by him and the same could not have been a ground for dismissing the suit by the lower appellate court. Sri Patnaik further submitted that the lower appellate Court. Court had any doubt as to the extent of encroachment by defendants 2 to 4, it should have appointed a survey-knowing Commissioner to find out the extent of encroachment instead of dismissing the suit in absence of such evidence. Sri Patnaik further submitted that the evidence clearly go to show the encroachment had been made by the defendants 2 to 4 and on such evidence also the Court could have come to conclusion in favour of the plaintiff. Sri Patnaik further submitted that the evidence clearly go to show the encroachment had been made by the defendants 2 to 4 and on such evidence also the Court could have come to conclusion in favour of the plaintiff. ( 9 ) LEARNED counsel for the respondents, on the other hand, submitted that there is absolutely no material on record to show that the Puri Municipality-defendant No. 1 at any point of time was the owner of the road as alleged by the plaintiff He further submitted that the documents and the oral evidence adduced on behalf of the parties nowhere indicate existence of road in front of plot Nos 118 to 142 and the lower appellate Court having found that there was no evidence with regard to existence of any road has rightly dismissed the suit and same bring a finding of fact that Court should not interfere in exercise of jurisdiction under Section 100 of the Civil Procedure Code. ( 10 ) THE first point to be considered is whether the Math had gifted the land to be used for the purpose of road to the Puri Municipality under Ext 6. Ext. 6 is the deed of gift made by Mahanta Gadadhar Ramanuja Das in favour of Puri Municipality and the said document has been executed in February 1955. All the plots mentioned in the said gift deed indicate that the same are only roads. The second point is to be considered is whether the gift deed was executed upon and the possession of the same road was given to the Puri Municipality or not. Though defendant No. 1- Puri Municipality filed its written statement no evidence was adduced on its behalf. However, from the evidence of DW 1 examined on behalf of defendant No. 2 it appears that the Puri Municipality had initiated an encroachment case against him and such encroachment case was initiated also against his wife who is the defendant No. 2. He has also admitted in his evidence that the Pun Municipality directed him to remove boundary wall which encroached upon the road belonging to the Municipality. In view of such evidence had the Municipality not been put in possesion of the road by the Math by virtue of Ext. He has also admitted in his evidence that the Pun Municipality directed him to remove boundary wall which encroached upon the road belonging to the Municipality. In view of such evidence had the Municipality not been put in possesion of the road by the Math by virtue of Ext. 6 there could not be any occasion for it to start an encroachment proceeding against the defendant No 2 for removal of encroachment made on the road. Therefore, finding of the trial Court that there was a road in existence in front of plot Nos. 118 to 142 and the said road had been gifted by the Emar Math in favour of the Puri Municipality is found to be correct. ( 11 ) COMING to the second point as to whether there has been encroachment by the defendants 2 to 4 or not, reference may again be made to the evidence of D. W. 1 examined on behalf of the defendant No. 2. Said witness is the husband of defendant No. 2, the owner of plots in question. In his evidence he has stated that there is a road in front of his house and its breadth is 12 feet. In cross-examination he has also admitted that he had not enquired about the colony plan when he took possession of the plots along with his wife and as per colony plan there is a road about 20 feet breadth in front of his house. In para-6 of his possession he also admitted that there is encroachment of the road and the breadth of the road is hardly 10 feet now This evidence of DW 1 proves existence of a road as indicated in the Basti plan to the extent of 20 feet width and encroachment by the defendants to the extent of 8 to 10 feet. This vital piece of evidence i. e. admission of existence of road in their deposition has been completely ignored by the lower appellate court and it proceeded on the footing that the plaintiff has no right to file suit having encroached upon the road himself. The lower appellate court lost sight of the fact and by the time the suit was filed the plaintiff had already removed encroachment made by him. The lower appellate court lost sight of the fact and by the time the suit was filed the plaintiff had already removed encroachment made by him. In this connection, learned counsel for the respondents submitted that even if the lower appellate court has not appreciated the evidence with regard to existence of any road properly this Court has no jurisdiction to interfere with ti. 3 same, in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. Reliance was placed by him in the case of V. Ramachandra Ayyar and Anr. v. Ramalingam Chettiar and Anr. The Apex Court in the said case held as follows.-"in hearing a second appeal, if the High Court is satisfied that the decision is contrary to law or some usage having the force law, or that the decision has failed to determine some material issue of law or usage having the force of law, or if there is a substantial error of defect in the procedure provided by the Code, or by any other law for the time being in force which may have produced error or defect in the decision of the case upon the merits, it can interfere with the conclusions of the lower appellate Court. The error or defect in the procedure to which Clause (c) of Section 100 (1) refers is, as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to the procedure, it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. That is why. even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. On the other hand, if in dealing with a question of fact, the lower appellate court has placed the onus on a wrong party and its finding of fact is the result, substantially, of this wrong approach, that may be regarded as a defect in procedure, if in dealing with questions of fact, the lower appellate court discards evidence on the ground that it is inadmissible and the High Court is satisfied that the evidence was admissible, that may introduce an error or defect in procedure. If the lower appellate Court fails to consider an issue which had been tried and found upon by the trial court and proceeds to reverse the trial court's decision without the consideration of such an issue, that may be regarded as an error or defect in procedure; if the lower appellate court allows a new point of fact to be raised for the first time before it, or permits a party to adopt a new plea of fact, or makes out a new case for a party, that may, in some cases, be said to amount to a defect or error in procedure. But the High Court cannot interfere with the conclusions of fact recorded by the Lower Appellate Court, however, erroneous the said conclusions may appear to be in the High Court. If a finding of fact has been recorded by the first appellate Court without any evidence, that finding can be successfully challenged in second appeal, because a finding of fact which is not supported by any evidence can be questioned under Section 100 and in that connection, it may be said that the decree proceeding on such a finding discloses a substantial defect or error in procedure. This, however, does not mean that wherever the High Court thinks that the evidence accepted by the lower appellate Court could not have been reasonably accepted, the High Court would be justified in interfering with the decision of the lower appellate Court. All that it means is that it should be a case where the evidence, which is accepted by the lower appellate Court no reasonable person could have accepted and that really amounts to saying that there is no evidence at all. "a careful reading of the decision of the Apex Court relied upon by the learned counsel for the respondents on the other hand shows that if vital piece of evidence which amounts to be an admission is not taken into consideration by the Court at all this Court can take note of the same and interfere with the finding of fact more so when it is a reversing one. Since there is clear admission on the part of the defendants that there has been existence of road to the extent of 20 feet width and that they had encroached to the extent of 10 to 12 feet, such a vital piece of evidence could not have been ignored by the lower appellate court while allowing the appeals. ( 12 ) ON consideration of the above facts I allow the appeals, set aside the judgment and decree passed by the lower appellate Court and confirm the judgment and decree passed by the trial Court. Appeal allowed.