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2005 DIGILAW 494 (ORI)

Sarojini Debi v. Dibakar Satapathy

2005-08-19

L.MOHAPATRA

body2005
JUDGMENT L. MOHAPATRA, J. : Defendant No.1 and the legal heirs of deceased defendant No.2 are the appellants before this Court against a confirming judgment. 2. The plaintiff-respondents filed the suit for declara¬tion of title, recovery of possession after eviction of the de¬fendants form the ‘B’ schedule land and for mandatory injunction directing the defendants to remove the construction made over ‘B’ schedule land. The case of the plaintiff-respondents is that plot No.811 under Khata No.87 of Village Gandarpur belonged to one Suhasini Debi. The said Suhasini Devi started selling her lands to different persons and one Kanhu Charan Pattnaik purchased some lands under two registered sale deeds dated 19.9.1958 and 19.5.1952. Out of the said lands, Kanhu Charan Patnaik sold 0.80 decimals to the plaintiff-respondents and defendant No.3 on 23rd March 1965. Out of the said 0.80 decimals, the plaintiff-respondent has interest over 0.40 decimals of land described in schedule ‘A’ and the defendant No.3 is entitled to the rest. The further case of the plaintiff-respondents is that Suhasini Devi sold a piece of land to the defendant-appellants adjacent to the West of the ‘A’ schedule land under occupation of plain¬tiff-respondents. Since, the plaintiff was staying away form Cuttack being a government servant, the defendant No.1-appellant encroached upon ‘A’ schedule land to the extent of an area of 49' x 14'.8 and constructed a house thereon. 3. The defendant Nos.1 and 2 filed written statement. It was the case of the said defendant-appellants that the plaintiff has not title or interest over the ‘B’ Schedule land, which forms part of the land on which construction has been made as they have purchased form Suhasini Devi. In the alternative, the defendants also claimed title by way of adverse possession. The defendant No.3 did not contest the case and was set ex parte. 4. On the pleadings of the parties, the trial Court framed as many as eight issues. Out of the said issues, issue Nos.5, 6 and 7 are relevant for the purpose of the suit. On assessment of the evidence adduced, the trial Court held that the plaintiff-respondent has title and interest over the ‘B’ scheduled land and that the defendant-appellants encroached upon ‘B’ scheduled land belonging to the plaintiff-respondent. Out of the said issues, issue Nos.5, 6 and 7 are relevant for the purpose of the suit. On assessment of the evidence adduced, the trial Court held that the plaintiff-respondent has title and interest over the ‘B’ scheduled land and that the defendant-appellants encroached upon ‘B’ scheduled land belonging to the plaintiff-respondent. The trial Court also found that the defendant-appellants failed to prove continued and uninterrupted possession over the land encroached upon by them for more than statutory period and, therefore, held that the defendants failed to prove title by way of adverse possession. With the above findings, the suit having been dismissed, the defendant-appellants preferred appeal before the learned District Judge, Cuttack. The learned District Judge also dismissed the appeal confirming the findings of the trial Court. However, after closure of hearing before the lower appellate Court, the appel¬lants filed three petitions and one of such petition is under Order 22 Rule 4 of the Civil Procedure Code for impleading one Hemalata Mohanty as a party to the appeal on the ground that during pendency of the appeal she had purchased the share of defendant No.3. In the judgment, the lower appellate Court also rejected the said petition on the ground that Hemalata Mohanty was lis-pendence purchaser. At the time of admission this Court formulated the following substantial questions of law : “1. For that the decree against a dead man is nullity in eye of law because the Respondent No.2 (Malati Dibya) died during pendency of appeal and no substitution is carried on. 2. For that the learned Lower Appellate Court failed to exercise jurisdiction by not considering the petition filed under Order 22, Rule 4 and Order-1 Rule 10 C.P.C. to implead to Lis-pendency purchaser. 3. For that the relief for encroachment should not be granted when the property is neither property described and identified nor the plaintiff’s title to their purchase land is disputed as the documents filed in the suit is completely differ¬ent to the plaint averments (in reference to Ext.6).” 5. The learned counsel for the appellants first contended that the property was not identifiable and, therefore, no decree could be passed in respect of the property, which is not identif¬icable. This argument of the learned counsel for the appellants relates to the 3rd substantial question of law on which the appeal was admitted. The learned counsel for the appellants first contended that the property was not identifiable and, therefore, no decree could be passed in respect of the property, which is not identif¬icable. This argument of the learned counsel for the appellants relates to the 3rd substantial question of law on which the appeal was admitted. In this connection, it is necessary to refer to the finding of the trial Court. It is found form the trial Court judgment that a Survey Knowing Commissioner was deputed to visit the spot, measure the land and prepare a field book. The Survey Knowing Commissioner after visit to the spot had prepared the report, which has been exhibited as Ext.1. In paragraphs 7 and 8 of the judgment, the trial Court has taken into considera¬tion the evidence available on record as well as the report of the Survey Knowing Commissioner to come to a conclusion that the plaintiff is the owner of ‘B’ schedule property. In the report, the Commissioner has indicated the land purchased by the plain¬tiff as well as the land, on which the defendant-appellants are alleged to have encroached upon. He has shown in yellow colour the disputed part of the land which was encroached upon by the defendant-appellants. The said report was accepted by the Court on 9.8.1978. The order of the trial Court accepting the Survey Knowing Commissioner report was never challenged by the defend¬ant-appellants. Moreover, on perusal of the report, it also appears that with reference to the same the encroached part can be identified. Apart form that, there is evidence available on record so far as identity of the disputed part of the plaintiff’s plot is concerned and, therefore, I am of the view that as both the Courts had no difficulty to identify the disputed part of the plot belonging to the plaintiff, there is hardly any scope for this Court to interfere with the concurrent findings of fact. 6. In relation to the substantial questions of law as mentioned in first and second paragraph of the grounds of appeal, the learned counsel drew the attention of the judgment of the lower appellate Court. It was submitted by the learned counsel that during pendency of the appeal before the first appellate Court, the defendant No.3 sold her share in favour of one Hemala¬ta Mohanty and, therefore, Hemalata Mohanty should have been added as a party. It was submitted by the learned counsel that during pendency of the appeal before the first appellate Court, the defendant No.3 sold her share in favour of one Hemala¬ta Mohanty and, therefore, Hemalata Mohanty should have been added as a party. I am unable to accept such a contention in view of the reason that as defendant No.3 did not contest before the trial Court and was set ex parte. She neither challenged the ex parte decree nor contested in appeal also. The disputed relates to encroachment of a portion of land belonging to the plaintiff. So far as the property belonging to defendant No.3 is concerned, there is no dispute and, therefore, there was no necessity for impleading Hemalata Mohanty a lis-pendence purchaser as a party to the appeal. I am of the view that such petition was rightly rejected by the lower appellate Court. The only other ground taken by the learned counsel at the time of argument is that the defendant No.3 was also the respondent No.2 before the lower appellate Court and having died during pendency of the appeal before the lower appellate Court and no substitution having been made, the decree passed against a dead person is nullity. I am also not able to accept such a contention in view of the fact that the defendant No.3 was made a party to the suit by order of the lower appellate Court earlier and in spite of notice, she did not contest in the suit and was set ex parte. She neither chal¬lenged the ex parte decree before any forum nor she contested in appeal also before the lower appellate Court. Apart form the above, there being no dispute with regard to property belonging to the defendant No.3, non-substitution of her legal heirs by the lower appellate Court makes no difference and decree passed by both the Courts are not affected at all. 7. In view of the discussion made above, I do not find any merit in the appeal and same stands dismissed. Appeal dismissed.