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2007 DIGILAW 776 (ORI)

Brundaban Sahoo v. Bipin Behari Das

2007-10-01

A.K.PARICHHA

body2007
JUDGMENT A. K. PARICHHA, J. : This is an appeal against the judgment and decree passed by the learned 2nd Addl. District Judge, Bhubanes¬war in R.F.A. No.3/3 of 2004 confirming the judgment and decree of the learned Civil Judge (Senior Division), Bhubaneswar in Title Suit No.442 of 1999. 2. The present appellant, as plaintiff, filed the above noted suit for declaration of his right, title over the suit property and permanent injunction against-defendants-respondents. The pleading, in essence, was that the mother of the plaintiff had purchased a piece of land appertaining to Plot No.3550/3900 in Khata No.250 of mouza Raja Rani (Schedule ‘C’ land) under registered sale deed No.6299 of 13.7.1964. While giving delivery of possession of that land, the vendor, Hemalata Devi also gave possession of a piece of adjoining land (Schedule ‘A’ land), which she had amalgamated with her land and accordingly, the mother of the plaintiff remained in possession of both the Sched¬ule ‘A’ and ‘C’ lands constructing a residential house, compound wall, cow shed etc. over it. She continued her possession over these lands till her death, whereafter the plaintiff possessed the same and in the process perfected title over the schedule ‘A’ land by virtue of adverse possession. The plaintiff alleged that on 12.7.1999 the present respondent No.1 came over the suit schedule ‘A’ land and threatened to dispossess him therefrom on the plea that the same has been leased out to him by the Government under lease deed No. 2748 dated 12.5.1999. Therefore, the plain¬tiff filed the suit seeking the aforementioned reliefs. 3. Respondent No.1 as defendant No.1 denied that the mother of the plaintiff or the plaintiff ever possessed schedule ‘A’ land or acquired title over the same by virtue of adverse possession. On the contrary, he claimed that schedule ‘A’ land is a property of the Government and after due enquiry by the G.A. Department, the said land was leased out to him and after taking over possession, he has constructed a compound wall around this land and is in possession of the same. Defendant-respondent No.2- State in its written statement supported the plea of the defendant-respondent No.1. It took a further plea that the suit was not maintainable as proper notice under Section 80, CPC had not been served. 4. Defendant-respondent No.2- State in its written statement supported the plea of the defendant-respondent No.1. It took a further plea that the suit was not maintainable as proper notice under Section 80, CPC had not been served. 4. From the pleadings of the parties, the learned trial Court framed as many as six issues and then taking the evidence led by the parties into consideration, it came to the conclusion that the plaintiff did not acquire any title over the suit land by adverse possession and that the defendant No.1 got possession over suit schedule ‘A’ land by way of lease from the State Government and that he is in possession of the same constructing a compound wall around it. Learned trial Court, therefore, observed that the plaintiff is not entitled to declaration of his right, title over the suit land or injunction against the defend¬ant No.1. With those findings, the learned trial Court dismissed the suit. The plaintiff carried appeal, but the learned first appellate Court concurred the findings of the learned trial Court and hence, the present appeal. 5. The following substantial question of law was formulat¬ed for consideration in this appeal. “Where the plaintiff/appellant was entitled to the relief of injunction in the face of note of possession in his favour in the R.O.R. and if in such eventuality the Govt. can dispossess the plaintiff/appellant without following the due process of law or by granting a lease in favour of Defendant/Respondent No.1 ? 6. Mr. A. P. Bose, learned counsel appearing for the appellant submits that after the finding of the learned trial Court that the appellant was in illegal possession of the suit schedule ‘A’ land and in absence of any evidence about his legal dispossession therefrom, the plaintiff was entitled to a decree for injunction based on possession. He submits that even if a person is in illegal possession of a land, his possession can be protected by issue of an order of injunction against the person threatening to dispossess him illegally. He contends that without considering this aspect and without analysing the evidence re¬garding possession properly, the learned 1st appellate Court held that the plaintiff-appellant was not in possession of the suit schedule ‘A’ land and that he was not entitled to a decree of injunction. In support his contention, Mr. He contends that without considering this aspect and without analysing the evidence re¬garding possession properly, the learned 1st appellate Court held that the plaintiff-appellant was not in possession of the suit schedule ‘A’ land and that he was not entitled to a decree of injunction. In support his contention, Mr. Bose relied on the case of Naba Diganta Educational Trust v. Managing Director, IDCO and another, 2005 (I) OLR 575 , wherein this Court while consider¬ing a petition under Order 39, Rules 1 and 2, C.P.C. observed that a true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowl¬edge of the true owner and in such circumstances, the law re¬quires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law. It was further observed in that case that the possession of a trespasser in these circumstances can be protected by grant of an interim order of injunction during pendency of the lis even against the true owner till he is evicted in due process of law. 7. Mr. S. K. Patnaik, learned counsel for respondent No.1, on the other hand, contends that Schedule ‘A” land is admittedly a Government land and the Courts having concurrently held that the plaintiff-appellant was not in possession of the same on the date of filing of the suit, he was not entitled to get any order of injunction in his favour, particularly when he also failed to prove his title over the same. He further contends that the Courts have concurrently held that the defendant-respondent No.1 was in possession over the suit land on the date of the suit and such concurrent finding of fact is not open to challenge in the Second Appeal. 8. In para 5 of the judgment of the trial Court, which is relied on by Mr. Bose, there is an observation that in Exts.4 and 5 the suit land is still recorded in the name of the Government with a note of illegal possession in favour of the plaintiff’s mother. 8. In para 5 of the judgment of the trial Court, which is relied on by Mr. Bose, there is an observation that in Exts.4 and 5 the suit land is still recorded in the name of the Government with a note of illegal possession in favour of the plaintiff’s mother. But after analyzing different documents and oral evidence, learned trial Court ultimately came to the conclusion that the possession and title of the plaintiff-appellant was not established over Schedule ‘A’ land and that the defendant No.1 after taking over possession had already constructed a compound wall over the same. This finding was confirmed by the learned 1st appellate Court, who observed in paragraph 33 of the judgment that the plaintiff - appellant failed to prove his possession over the suit land. The grievance of Mr. Bose is that this con¬clusion of the learned 1st appellate Court is without any discus¬sion of evidence on record. But in paragraph 33, learned 1st appellate Court has indicated the documents and evidence, which he considered before reaching the conclusion. Be that as it may, the scope of reanalyzing the evidence on factual issue is very limited in Second Appeal. Normally the Court of Second Appeal is not to re-assess the evidence, to judge correctness of the con¬current finding on factual aspects. In the present case, both the Courts below discussed the evidence and found that although a note of illegal possession is there in favour of the mother of the plaintiff in the R.O.R., yet from the evidence, it was clear that the plaintiff was no more in possession of Schedule ‘A’ land on the date of the suit. Such finding by the Courts below arrived after discussing the evidence cannot be disturbed by the 2nd appellate Court when there is no perversity in the approach. There is no quarrel about the legal proposition laid down in Naba Diganta Educational Trust’s case (supra) and law is settled that once a party is found to be in possession of a land, he cannot be evicted therefrom without taking recourse to the legal process. This legal principle is however not helpful to the appellant as the Courts below concurrently held that he was not in possession by the date of the suit. This legal principle is however not helpful to the appellant as the Courts below concurrently held that he was not in possession by the date of the suit. In such situation, there was no scope for the learned Courts below to favour the plaintiff-appellant with a decree of injunction restraining the defendant respondent from entering into the suit land. 9. The substantial question of law is accordingly answered against the appellant and consequently the appeal is dismissed on contest. No cost. Appeal dismissed.