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2008 DIGILAW 626 (ORI)

Manorama Das v. Hari @ Hrusikesh Sethi

2008-08-04

SANJU PANDA

body2008
JUDGMENT S. PANDA, J. — This is an application under Article 227 of the Constitution of India. 2. In this writ petition the petitioner has challenged the order dated 3.4.2002 passed by the learned Civil Judge (Junior Division), Bhubaneswar in T.S. No.11 of 1993 accepting the report of the survey knowing commissioner which was confirmed by the learned Ad hoc Addl. District, Khurda in Civil Revision No.14 of 2003. 3. The main contention of the plaintiff-petitioner is that she filed the suit for declaration of right, title, interest over the suit schedule land and permanent injunction restraining the defendants from interfering with the possession or creating any mischief with the suit schedule land, and if it is found that the plaintiff has been dispossessed in the meantime for recovery of possession. From out of current settlement plot No.60 measuring an area of Ac.17.150 dec. which was waste land recorded in favour of the State Government under Holding No.300 plaintiff took lease of Ac.0.400 decs. and Ac.0.500 decs. in Waste Land Lease Case No.1567/84 and 201/85 respectively. Accordingly, fraction plot Nos.60/998 and 60/999 were carved out and recorded in favour of the plaintiff under Holding No.195/17 in the revenue records. In the settlement R.O.R. finally published in 1998, both the afore¬said fraction plots were jointly recorded in Hal Plot No.136 in favour of the plaintiff. The husband of the plaintiff took lease of land out of C.S. Plot No.60 which situates adjoining north of the plaintiff’s leasehold land and the same was carved out as fraction plot No.60/996 corresponding to Hal Plot No.134/1475. Plaintiff was in continuous and peaceful possession thereof rais¬ing cashewnut plantation and had stored laterite stones to raise compound wall in the three leasehold plots. While the matter stood thus, defendant No.3 took lease of land out of very same C.S. Plot No.60 in a separate lease case resulting in carving of fraction plot No.60/992 corresponding to Hal Plot No.137. After demarcation of the aforesaid leasehold lands and delivery of possession thereof in favour of respective lessees, the original map which was kept in the record room was corrected accordingly. After demarcation of the aforesaid leasehold lands and delivery of possession thereof in favour of respective lessees, the original map which was kept in the record room was corrected accordingly. The allegation of the plaintiff is that subsequently the defend¬ants colluded with the staff to grab the plaintiff’s leasehold land and managed to create another plot adjoining north of plot No.60/992 by correcting the revenue map maintained in the record room and claimed that defendant No.1 got the same on lease from the State Government. The plot of land shown in the subsequent map actually overlapped the plaintiff’s plot and had no independ¬ent identity. The defendants on the basis of such incorrect map threatened to trespass and raise construction over the suit land damaging cashewnut trees of the plaintiff for which the plaintiff was compelled to file the aforesaid suit. 4. Defendants 1 and 2 filed one written statement and defendant No.3 filed a separate written statement but after the amendment of the plaint, they filed additional written statement jointly. They admitted the plaint case in respect of grant of lease of suit plots in favour of the plaintiff, her husband and defendant No.3 but they challenged the maintainability of the suit stating that defendant No.1 had taken lease of Ac.0.500 dec. of land out of C.S. Plot No.60 in Waste Land Lease Case No.1420 of 1982 resulting in carving of fraction plot No.60/997 under khata No.195/16 which situates adjoining north of defendant No.3’s land i.e. plot No.60/992 and accordingly defendant No.1 was in possession thereof raising cashewnut trees, green fence of Siju, Amari and Begunia towards southern side leaving some por¬tion for future homestead purpose. Adjoining north of the afore¬said land of defendant No.1 situates the plaintiff’s plots and adjoining north thereof situates the plot of her husband. Defend¬ants in the additional written statement stated that at the ‘Kistiwari’ stage of Hal settlement operation the situation of plot Nos.60/992, 60/997, 60/998, 60/999 and 60/996 were correctly maintained as per record and map of the waste land lease cases. But in ‘Khanapuri’ stage, plaintiff colluded with the settlement officials and by manipulation got Ac.0.050 decs. deducted from Sabik Plot No.60/992 and got it included in Plot No.60/998 and 60/999. But in ‘Khanapuri’ stage, plaintiff colluded with the settlement officials and by manipulation got Ac.0.050 decs. deducted from Sabik Plot No.60/992 and got it included in Plot No.60/998 and 60/999. Accordingly, situation and position of plot No.60/996 was changed and the said plot was renumbered as Hal Plot Nos.134, 136 and 134/1475 and recorded in favour of the plaintiff and her husband. Coming to know about such manipulation and deliberate error, defendants objected before the Settlement authority in pursuance of which settlement Amin submitted his report after actual measurement of the field. During the hearing of the said objection, plaintiff having informed about the pendency of the suit, the settlement authority did not take any action on the objection of the defendants. They further stated that the suit land is part of plot No.60/997 belonging to defendant No.1 and plaintiff instituted the suit with an intention to grab the suit plot. 5. The trial Court on the pleadings of the parties framed issues and proceeded with the hearing of the suit. In support of their respective pleadings, parties adduced documentary as well as oral evidence in support of their cases. However, the defendants did not adduce any oral evidence in support of their case till filing of the writ petition. Plaintiff also examined the Amin, who delivered the possession of leasehold land to the parties in the waste land lease case, as P.W.1. He described the plot numbers along with the sketch map prepared by him. While the matter stood thus, defendants filed an application for deputation of a survey knowing commissioner in order to identify and demar¬cate the lease hold property of defendants 1 and 3 with a refer¬ence to the lease case records for proper adjudication of the dispute. They also filed an application for amendment of the written statement. Plaintiff filed his written objection to the said petition stating therein that at that stage the appointment of a survey knowing commissioner was not necessary since the defendants did not adduce their evidence. The trial Court by order dated 3.7.2001, without considering the matter in its proper perspective and on erroneous appreciation and misconcep¬tion of law, allowed the petition of the defendants for appoint¬ment of a survey knowing commissioner to demarcate and locate the leasehold properties which was granted in favour of the respec¬tive parties in the waste land lease cases. The trial Court by order dated 3.7.2001, without considering the matter in its proper perspective and on erroneous appreciation and misconcep¬tion of law, allowed the petition of the defendants for appoint¬ment of a survey knowing commissioner to demarcate and locate the leasehold properties which was granted in favour of the respec¬tive parties in the waste land lease cases. The survey knowing commissioner issued notice to the plaintiff and defendants 1 to 3 fixing 10th to 12th December, 2001 for identification and demar¬cation of the leasehold properties of the respective parties. On 10.12.2001 the plaintiff along with the advocate’s clerk attended the suit site to participate in the enquiry conducted by the commissioner and she found the following infirmities, i.e., the village map was supplied to the commissioner at the spot by the local R.I. the map was neither authenticated nor did it contain the seal of the Court to ascertain that the same was supplied to the commissioner through Court. The map relied on by the commis¬sioner was also not in a proper condition. The plaintiff raised objection before the commissioner and in spite of the same the commissioner proceeded with such illegal way of investigation. The plaintiff approached the Court below on 11.12.2001 by filing an application bringing to its notice the aforesaid infirmities with a prayer not to entertain such enquiry report and for appro¬priate direction for just and proper enquiry by the commissioner with the correct map and other materials. The trial Court did not pass any order on the said application and in the absence of the plaintiff the commissioner proceeded with the enquiry with defec¬tive and torn map supplied to him by the local R.I. which was contrary to the direction of the Court below. The commissioner submitted his report along with the demarcation map and filed note book on 11.12.2001. The Court below without considering the objection of the petitioner accepted the report of the commis¬sioner with a finding that the commissioner in due discharge of his duty had properly demarcated the lease plots as per the order dated 3.4.2002. 6. The learned counsel for the petitioner submitted that the Court below not only exceeded its jurisdiction but also exercised the jurisdiction illegally and with material irregular¬ity. 6. The learned counsel for the petitioner submitted that the Court below not only exceeded its jurisdiction but also exercised the jurisdiction illegally and with material irregular¬ity. The facts and circumstances, as narrated above show that the deputation of a survey knowing commissioner amounts to collection of evidence on behalf of the defendants and as such the impugned order should be quashed, failing which the plaintiff-petitioner will sustain grave injustice since she has already adduced oral evidence by examining the R.I. who had delivered possession of the waste leasehold land along with the map. Being aggrieved by the said order of the trial Court, the plaintiff filed Civil Revision No.4 of 2002 before the learned District Judge, Khurda which was subsequently transferred to the Court of learned Ad hoc Addl. District Judge & Sessions Judge, FTC, Khurda and renumbered as Civil Revision No.14 of 2003. He submitted that Section 115 of the Civil Procedure Code was amended by virtue of Civil Procedure Code (Amendment) Act, 2002 taking away the jurisdiction of the revisional Court against an interlocutory order. But without considering the said fact the revisional Court dismissed Civil Revision No.14 of 2003 on 16.9.2003 with an observation that the petitioner can take a private commissioner to demarcate the land and to show in the trial of the suit by adducing evidence that the demarcation made by the civil Court commissioner was not correct. The learned counsel for the petitioner further submitted that as the Amendment Act, 2002 came into force in July, 2002, the learned Ad hoc Addl. District Judge should not have exercised the revisional jurisdiction. It was also contended by him that as per Clause 32 (i) of the Code of Civil Procedure Code (Amendment) Act, 1999, the provisions of Section 115 of the Principal Act as amended by Section 12 of this Act, shall not apply to or affect any proceeding for revision which had been finally disposed of. Section 32(i) under Chapter-IV of the Code of Civil Procedure (Amendment), 1999 says that any amendment made or any provision inserted in the Principal Act by a State Legislature or High Court before the commencement of this Act shall, except in so far as such amendment or provisions is consistent with the provisions of the Principal Act as amended by this Act, stand repealed. Clause-2 says that notwithstanding that the provisions of the Act have come into force or repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 which clearly states that the Amended Act is applicable to pending cases. The learned counsel appearing for the petitioner further submitted that in view of the decision of the apex Court in the case of Siva Shakti Co-opp. Housing Society, Nagpur v. M/s. Swaraj De¬velopers and others reported in AIR 2003 SC 2434 against an interlocutory order the revision is not maintainable before the learned District Judge and the revisional Court has no power to entertain the revision. Therefore, the order passed by the revi¬sional Court is without jurisdiction. He further submitted that the trial Court exercised its jurisdiction not vested in it and accepted the report of the survey knowing commissioner and if the said order will be allowed to stand, it will cause grave injus¬tice to the petitioner. Therefore, the impugned orders need to be interfered with in exercise of the jurisdiction under Article 227 of the Constitution of India. 7. The learned counsel for the opposite parties submitted that since the valuation of the suit is less than Rs.1 lakh, the revisional Court rightly exercised its jurisdiction and the trial Court also accepted the report of the survey knowing commissioner in accordance with law. He further submitted that the trial Court for just decision of the case accepted the report of the survey knowing commissioner and the order of the trial Court has been rightly confirmed by the revisional Court. Therefore, this Court need not interfere with the findings of the Courts below in exer¬cise of its jurisdiction under Article 227 of the Constitution of India. 8. Be that as it may, the facts and circumstances narrated hereinabove clearly show that the trial Court accepted the report of the commissioner without considering or properly dealing with the objection raised by the plaintiff-petitioner which amounted to an error apparent on the face of the record. The apex Court in the case of Siva Shakti Co-op. Housing Society, Nagpur (supra) has held that the revision against an interlocutory order is not maintainable. The revisional Court exceeded its jurisdiction by entertaining the revision though the order was an interlocutory order. The apex Court in the case of Siva Shakti Co-op. Housing Society, Nagpur (supra) has held that the revision against an interlocutory order is not maintainable. The revisional Court exceeded its jurisdiction by entertaining the revision though the order was an interlocutory order. Hence, this Court holds that Civil Revision No.14 of 2003 filed before the learned Ad hoc Addl. District Judge, Khurda was not maintainable. As grave injustice has been caused to the petitioner by accepting the report of the commissioner by the Court below, this Court in exercise of its power under Article 227 of the Constitution of India sets aside the order dated 3.4.2002 passed by the learned Civil Judge (Junior Division), Bhubaneswar in T.S. No.11 of 1993 and directs the learned Civil Judge to hear the matter afresh by considering the objection raised by the plaintiff-petitioner. With the aforesaid observation the writ petition is disposed of. Petition disposed of.