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2007 DIGILAW 731 (ORI)

Brundaban Naik v. Panchu Naik

2007-09-19

A.K.PARICHHA

body2007
JUDGMENT A. K. PARICHHA, J. : The defendants are in appeal against the judgment and decree passed by the learned District Judge, Boudh-Kondhamal in T.A.No. 7 of 1984 confirming the judgment and decree passed by the learned Additional Munsif, U.Gudayagiri in T.S.No. 4 of 1980 allowing the claim of the plaintiff for recovery of possession of the suit land from the defendants. 2. The following substantial questions of law were formu¬lated for consideration in this appeal. (i) Whether the suit of the plaintiff was maintainable when he admits that the eastern boundary of the suit land given in the plaint is wrong ? (ii) Whether the description of the suit land given in the plaint is hit under Order 7 Rule 3, C.P.C. ? 3. Mr. Bose, learned counsel appearing for the appellants submits that wrong description of the suit land in the plaint is not a formal defect and goes to the root of the matter and therefore, when the description of the suit land given by the plaintiff was not the definite and specific, learned Courts below should have dismissed the suit on the ground of non-specification of the suit property. In support of his contention, he relies on the case of Dwaraka alias Dwaraka Prasad Agarwalla v. Mst. Sashi¬prabha Gountiani, 32 (1966) CLT 864 and Babaji Dehuri and others v. Biranchi Ananta and others, 1996 (I) OLR 451. 4. Despite service of notice, no one is present on behalf of the respondents. 5. Order 7, Rule 3, C.P.C. contemplates that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identi¬fy it, and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. Analysing the above provision, this Court in the cases of Dwaraka Prasad Agarwalla (supra) observed that what exactly is the land or the area of the land over which the dispute exists is a question which goes into the root of the matter relating to substance of the case, and not of form and omission of such a description either in the plaint or non-supply of a map annexed to the plaint or in the course of evidence cannot be classified as a formal defect. The Court also observed that no Court would pass a decree which would be inexe¬cutable or would be rendered infructuous. In the case of Babaji Dehuri (supra), it was observed that in case of conflict in the description of the immovable properties, boundary is to be pre¬ferred over other descriptions, e.g. Khata No. and Plot No. etc. 6. The provision of Order 7, Rule 3, C.P.C. and the above noted observation of this Court, essentially indicate that where the description of the immovable property given in the plaint or evidence is inadequate to identify the suit property, then even if decree is passed, it cannot be executed due to non-specification of the property, and for that reason decree cannot be passed in a suit where the description of the property is vogue. In the present case, the suit land has been described by the plaintiff by its local name as well as its boundary. From the evidence of the parties, learned Courts below found that there was no earlier settlement in the concerned area and that the settlement had been conducted recently for which no plot no. were not available at the time of filing of the suit and so, the suit land was described by the plaintiff by its local name and bound¬aries. The plaintiff and his witnesses stated in clear term that the local name of the suit land is “MADHIA BANJAR”. The D.Ws. described the local name of the suit land as ‘KATHIPENU’, ‘KENDU¬PADAR’ AND ‘BARIJHOLA’, but from their cross examination, it was found that they were giving the local name of the neighbouring lands. The Courts below, therefore, concluded that the local name of the suit land is “MADHIA BANJAR”. The plaintiff and his wit¬nesses described the boundary of the suit land, which agreed with the boundary given in the plaint on three sides. But there was some discrepancy about the eastern boundary. Analysing the evi¬dence and surrounding situation, learned Courts below clearly held that even if there was some discrepancy about the eastern boundary, the suit land was identifiable from the local name and the boundary given and that the decree passed can be executed. But there was some discrepancy about the eastern boundary. Analysing the evi¬dence and surrounding situation, learned Courts below clearly held that even if there was some discrepancy about the eastern boundary, the suit land was identifiable from the local name and the boundary given and that the decree passed can be executed. In such a situation, the ratio noted in Dwaraka Prasad Agarwalla (supra) and Babaji Dehuri (supra), cannot be applied to the present case and it cannot be said that the discrepancy in the eastern boundary goes to the root of the matter and makes the suit land unidentifiable, particularly when there was evidence regarding the local name and boundary in three sides. That being so, the learned Courts below were not legally or factually incor¬rect in their observation that the suit land was not hit under Order 7, Rule 3, C.P.C. 7. For the aforesaid reasons, the substantial questions of law are answered against the appellant. The Second Appeal is thus found to be without any merit and is dismissed. Parties are to bear their own cost. Appeal dismissed.