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2013 DIGILAW 186 (ORI)

Bipin Panigrahi v. Johones Palo

2013-07-05

SANJU PANDA

body2013
JUDGMENT S. Panda, J. – The appellant has filed this second appeal challenging the judgment and decree dated 25.8.2007 and 10.9.2007 respectively passed by the learned Addl. District Judge (FTC), Jeypore in RFA No.11/2007 (33/06 of the District Judge) reversing the judgment and decree dated 23.9.2005 and 9.10.2006 respectively passed by the learned Civil Judge (Senior Division), Jeypore in C.S. No.15 of 2006. 2. The following substantial questions of law arise to be determined in this second appeal; “1.Whether the findings of the lower appellate court on the question of prior possession of the plaintiff relying upon Ext.4 suffers from serious perversity and unreasonableness, particularly when Ext.4 which is an order dated 29.6.1985 passed by the Tahasildar, jeypore in Encroachment Case No.78 of 1985 rejecting the plea of the plaintiff to record his name in respect of the property without disclosing plot number, area as the area was surveyed in the year 1966 and at that time the plaintiff did not claim to be in possession of the said property? 2. Whether the judgment and decree of the lower appellate court is sustainable as the real nature of the suit referring to its pleadings and prayer appears a suit under Section 6 of the Specific Relief Act and no appeal is maintainable in such type of suit. As such, the lower appellate court had lacked jurisdiction to entertain the appeal?” The appellant has raised the question of the lower appellate court which is a pure question of law. Therefore, the same can be raised at the time of hearing of the second appeal also. In view of the above substantial questions of law, it is necessary to go into the pleadings of the parties and the finding of the courts below also. 3. Respondent no.1 as plaintiff filed the suit on the plea that he is in possession of the suit property described in the plaint as Schedule-A and B properties. He is using Schedule-B property for passage to the suit house and house site situated over Schedule-A property. Defendant nos.1 and 2 are tenants under the house owner Srinivas Rath, father of defendant no.3. They are the northern side neighbours of the plaintiff. Taking advantage of the situation, on 25.12.2005 defendant no.1 raised a wall over suit passage as a result of which the entrance to the house and house site of the plaintiff was obstructed. Defendant nos.1 and 2 are tenants under the house owner Srinivas Rath, father of defendant no.3. They are the northern side neighbours of the plaintiff. Taking advantage of the situation, on 25.12.2005 defendant no.1 raised a wall over suit passage as a result of which the entrance to the house and house site of the plaintiff was obstructed. Defendant no.1 did not remove the said wall on the request of the plaintiff. Hence, a lawyer notice was issued. Thereafter, the plaintiff filed the suit for removal of obstruction from the suit properties relating to Schedule-B property. Defendant nos.1 and 2 filed their written statement traversing the plaintiff’s allegations. They specifically pleaded that in the year 1971 defendant no.1 came to Jaypore for employment. As vacant land of the Government was available at Parabeda of Jeypore town, he constructed a house over Plot No.232 in Khata No.1458 and remained in possession of the same since then. Schedule-B property as described in the plaint is a part and parcel of defendant no.1’s encroached land and right from the year 1972, the Tahasildar, Jeypore initiated OPLE Case No.13 of 1996 against defendant no.2. The penalty was assessed and defendants 1 & 2 were paying the penalty each year for possessing the aforesaid land. They totally denied that they are not the tenants under Srinivas Rath adjoining to the North of Schedule-A property. They also denied that Schedule-A property belongs to Government. The plaintiff is in illegal possession of the same for which an encroachment case has been initiated against them by the Tahasildar, Jeypore. They further pleaded that the suit was barred by limitation and also bad for nonjoinder of necessary parties, i.e. the State Government as the land belongs to it. 4. Defendant no.3 also filed his written statement averring that his father late Srinivas Rath after encroaching the vacant Government land measuring 25 feet in North-South and 130 feet in West-East constructed a thatched house with mud wall where he started living with his family 20 years back. OPLE Case No.79 of 1985 was initiated in the year 1985 by the Tahasildar, Jeypore in respect of the encroached land by his father pertaining to Government Plot No.232 under Khata No.1458. After the death of his father, defendant no.3 left the place as he was serving as a teacher and let out the house to defendant no.1. OPLE Case No.79 of 1985 was initiated in the year 1985 by the Tahasildar, Jeypore in respect of the encroached land by his father pertaining to Government Plot No.232 under Khata No.1458. After the death of his father, defendant no.3 left the place as he was serving as a teacher and let out the house to defendant no.1. Thereafter, for ulterior motive, defendant no.1 did not pay the rent and notice was issued for eviction. However, defendant no.1 has been illegally possessing the said house encroaching Schedule-B property of the plaintiff by raising a wall. He supported the case of the plaintiff. 5. Considering the pleadings of the parties, the court below framed as many as six issues which are as follows: “1. Whether the present suit is maintainable? 2. Whether the suit is bad for non-joinder of necessary party such as Collector, Koraput or Tahasildar, Jeypore in view of the specific pleading of the defendants that A and B schedule properties are Government lands? 3. Whether the suit is barred by limitation? 4. Whether the plaintiff has right, right, interest upon the suit property (B Schedule property) in order to claim recovery of possession of the same from the defendants? 5. Whether A and B schedule properties belong to the Government or to the plaintiff or to defendants? 6. To what else relief the plaintiff is entitled to beyond prayer?” 6. The parties adduced oral as well documentary evidence in support of their respective pleas. Plaintiff examined three witnesses and exhibited the documentary evidence which were marked Ext.1 to 19/a. Defendant nos.1 & 2 examined three witnesses and exhibited the documentary evidence which were marked Exts.A to G. Ext.4 is the order passed by the Tahasildar, Jeypore in OPLE Case No.78 of 1985 so also Ext.G is the certified copy of the order sheet of the said Encroachment Case No.78 of 1985 of the Tahasildar, Jeypore. Defendant nos.1 & 2 also filed penalty receipts vide Ext.D series. Defendant no.3 neither examined himself nor adduced any oral or documentary evidence in support of his pleadings. It appears that OPLE case is still pending after it was remanded to the Tahasildar for fresh decision in accordance with law as per the direction dated 3.2.1993 issued by this Court in OJC No.2794 of 1989. The present appellants were not parties to the said writ petition. It appears that OPLE case is still pending after it was remanded to the Tahasildar for fresh decision in accordance with law as per the direction dated 3.2.1993 issued by this Court in OJC No.2794 of 1989. The present appellants were not parties to the said writ petition. The Government and its officials were opposite parties. 7. The trial court on analysing the pleadings and the evidence adduced by the parties came to the findings that as there was no cause of action against the Government, the Government was not a necessary party. Schedules A and B properties belong to the Government being encroached by the plaintiff as well as defendants with hostile claim against each others. Plaintiff totally failed to substantiate the cause of action said to have taken place on 25.12.2005. He did not plead specifically as to when he came upon the Government Plot No.232 as an encroacher. Therefore, filing of the suit by the plaintiff on th February, 2006 without justifying the cause of action on 25.12.2005 was found not maintainable being barred by limitation. Moreover, under Section 15 of the Indian Easements Act, 20 years preceding to institution of the suit was not completed to claim easementary right by the plaintiff looking to his own document Ext.4 when R.I saw him possessing a portion of the Government plot. The plaintiff had not prayed for declaration of right, title and interest over Schedule-A or B properties. Defendants had also not pleaded claiming right, title and interest over the suit properties. Both the parties admitted that the properties belong to the State of Orissa and they are in possession of the suit properties. In the absence of original owner, the court was not required to give any finding on issue no.4. From the evidence of the plaintiff, it appears that the plaintiff was a student in Gunupur Boys High School. The claim of the plaintiff, to have encroached a portion of the suit property at the age of 14 years, was improbable. The same indicated that the plaintiff deposed falsehood regarding time of encroachment of the suit property and he wanted to make necessary correction of his earlier statement by deposing that actually he born in 1975. But the said attempt of the plaintiff indicated that he wanted to tell a further lie in order to justify his case and the period of limitation. But the said attempt of the plaintiff indicated that he wanted to tell a further lie in order to justify his case and the period of limitation. Ext.G which was a public document reveals that defendant nos.1 and 2 encroached 40 decimals of Government land in Plot No.232 since 1985. Both the parties claimed equal period of possession over the disputed land and there was nothing more in support of the plaintiff’s case that he encroached a portion of the Government land under Schedule-B property much prior to defendants 1 and 2. Plaintiff failed to prove his case of prior possession. Therefore, he is not entitled to get relief under Section 6 of the Specific Relief Act so also the relief under Section 15 of the Indian Easements Act. On these grounds, the trial court dismissed the suit. 8. The plaintiff filed RFA No.11/2007 (33/06 of Dist. Judge) being aggrieved by the judgment and decree of the trial court which was disposed of by the learned Addl. District Judge (FTC), Jeypore on 25.8.2007. The lower appellate court allowed the appeal by setting aside the judgment and decree dated 23.9.2006 and 9.10.2006 respectively of the trial court on the grounds that regarding the evidence as adduced by the parties, the plaintiff filed documentary evidence, which always superceded the oral evidence, in a case of civil nature. The plaintiff filed a copy of the proceeding initiated by the Tahasildar in Encroachment Case No.78 of 1985. Thus, from the documentary evidence, Ext.4, it was clear that since the year 1985 the plaintiff is in possession of the land because the boundary as given by the plaintiff regarding Schedule-A and Schedule-B has not at all been denied by the defendants. The evidence of D.W.2 that the plaintiff came into possession in 1990 bears no significance on the face of Ext.4 which is a public document. Now, coming to the possession of defendant nos.1 and 2, they claimed to be in possession of Schedule-B property since 1971-72. In their written statement, they averred that since 1985 they are in possession. Since defendants 1 and 2 did not deny specifically the fact alleged by the plaintiff, it is taken to be the admitted fact. Now, coming to the possession of defendant nos.1 and 2, they claimed to be in possession of Schedule-B property since 1971-72. In their written statement, they averred that since 1985 they are in possession. Since defendants 1 and 2 did not deny specifically the fact alleged by the plaintiff, it is taken to be the admitted fact. Therefore, from the contents of the written statement, it was somehow admitted by defendant nos.1 and 2 that a case had been initiated against late Sirinibas Rath, the father of defendant no.2, in respect of the lands they claimed to be in possession. Defendant no.3 admitted the whole contents of the plaintiff. Therefore, the finding of the trial court that defendants 1 and 2 are in possession of the suit Schedule-B property since 1985 is not at all tenable. 9. Learned counsel appearing for the appellants-defendant nos.1 & 2 submitted that the lower appellate court did not consider the specific finding of the trial court that the plaintiff had failed to prove the facts to get relief under Section 6 of the Specific Relief Act. Therefore, since appeal is not maintainable against the judgment and decree passed under Section 6 of the Specific Relief Act, the said question goes into the root of the matter. Therefore, the order passed by the lower appellate court is liable to be set aside. In support of his contention, he has cited the decisions of the apex Court in the cases of Hasham Abbas Sayyad v. Usman Abbas Sayyad & others reported in AIR 2007 SC 1077, Nair Service Society Ltd. v. K.C. Alexander and others reported in AIR 1968 SC 1165 (V 55 C 225), Bijaya Kumar Swain v. Harekrushna Nayak reported in 2008 (Supp.II) OLR 800, Maria Margarida Sequeria Fernandes and others v. Erasmo Jack de Sequeria (Dead) through L.Rs, AIR 2012 SC 1727 , 2012 (I) OLR(SC) 945 and Tarinikamal Pandit and others v. Perfulla Kumar Chatterjee (dead) by L.Rs reported in AIR 1979 SC 1165 . 10. 10. He further submitted that the evidence of the appellant-defendant no.1 regarding his possession of the land and construction of a house thereon with boundary wall, bath room, latrine and house of the plaintiff exists, has been misread and misinterpreted by the appellate court as the plaintiff in his plaint has not specifically given the four boundary of the disputed property which has been described in Schedule-B of the plaint which runs as follows: “Schedule-B Property (suit passage) A vacant site measuring about 5-feet width from north to south and length 130-feet east to west situated in mouza Jagadhatripur (Parabeda) near block office of Jeypore town in Khata No.1458, Plot No.232 out of the total extent of Ac.3.770 decimals which is a part and parcel of ‘A’-Scheduled property and bounded as follows: East : Land of Gitanjali Palo, West : Road, North: Rented house of the defendant nos.1 & 2 South : House wall of the plaintiff.” Therefore, the same was of no help to the plaintiff as he did not specify which portion of the bigger plot with an area of Ac.3.770 decimals of land was in his possession. 11. Learned counsel for the respondent-plaintiff submitted that the plaintiff filed the suit with a prayer to direct defendants to remove the encroachment wall over the suit passage, i.e., Schedule-B property at their own cost and on failure to do so by the process of the court; and such other reliefs as the court deems fit and proper as the suit passage is in peaceful enjoyment of the plaintiff without any objection from anybody. The plaintiff clearly mentioned in his plaint the schedule plot number and the area. Therefore, since the suit property was distinct and clear, and part and parcel of Plot No.232 under Khata No.1458, the appellate court has rightly passed the impugned order. He further submitted that this Court in OJC No.2794 of 1989 which was marked as Ext.7 accepted the plea of the plaintiff and remanded OPLE Case No.78 of 1985 to the Tahasildar, Jeypore for fresh decision. Therefore, the finding of fact arrived at by the lower appellate court on the basis of Ext.4 and Ext.G need not be interfered with. He further submitted that this Court in OJC No.2794 of 1989 which was marked as Ext.7 accepted the plea of the plaintiff and remanded OPLE Case No.78 of 1985 to the Tahasildar, Jeypore for fresh decision. Therefore, the finding of fact arrived at by the lower appellate court on the basis of Ext.4 and Ext.G need not be interfered with. He submitted that the suit was not for declaration of right, title and interest and which was also not filed for recovery of possession; rather the suit was filed under Section 9 of the Civil Procedure Code praying a simple relief of demolition of wall on the suit passage. He further submitted that there being no allegation of dispossession and in the absence of any prayer for recovery of possession, the suit cannot be said to have been instituted under Section 6 of the Specific Relief Act. In support of his contention, he has cited the decision of the apex Court in the case Nagar Palika, Jind v. Jagat Singh reported in AIR 1995 SC 1377 . 12. From the rival submissions of the parties and after going through the record, it appears that in Ext.4 the Tahasildar, Jeypore did not reflect the suit plot number, its khata number, area and which part of the said plot was under the encroachment of the plaintiff. Ext.G which is also a certified copy of OPLE Case No.78 of 1985 wherein the Tahasildar, Jeypore issued notice to the plaintiff to show cause under Section 9 of the Act. The said exhibit is also not clear. The said notice does not reflect which portion of the Plot No.232 is under the possession of the plaintiff; rather admittedly the Plot No.232 under Khata No.1458 is a bigger plot having area of Ac.3.770 decimals. Defendants are also in possession of the Government plot for which encroachment proceeding was initiated against them in OPLE Case No.13 of 1996. Defendants had also paid the penalty which was assessed for illegal possession of the land and the receipts were marked as Ext.D series. Admittedly, defendants were also not parties in OJC No.2794 of 1989 which was filed before this Court and the matter was remanded to the Tahasildar, Jeypore for consideration of the claim of the plaintiff afresh. Therefore, it cannot be said that the plaintiff proved his possession in respect of the disputed land. Admittedly, defendants were also not parties in OJC No.2794 of 1989 which was filed before this Court and the matter was remanded to the Tahasildar, Jeypore for consideration of the claim of the plaintiff afresh. Therefore, it cannot be said that the plaintiff proved his possession in respect of the disputed land. Further, after going through the description of the land as given in the plaint, Schedule-B property as described, was not clear in which portion the said plot is situated out of the bigger area of Ac.3.770 decimals. The plaintiff is to succeed on its own merit and he cannot take advantage of the weakness of the defence. Here, in the present case, admittedly though the plaintiff claimed that he is in possession of the disputed property he had not given the proper description of the suit property; rather both the plaintiff as well as defendants admitted that the land in question belongs to the State Government. The disputed property is a part and parcel of the Plot No.232, Khata No.1458 having an area of Ac.3.770 decimals and which portion of that plot was in possession of the plaintiff is not clear. It is also not the case of the plaintiff that he is in possession of the entire plot; rather there are other encroachers. Therefore, the trial court has rightly discussed the evidence on record and came to a conclusion that as the plaintiff failed to prove his case, he is not entitled to get any relief under Section 6 of the Specific Relief Act. 13. The plaintiff has not raised any objection to the said finding of the trial court in RFA No.11 of 2007 (33/06 of Dist. Judge) filed by him. The appellate court has not taken into consideration the specific bar of Section 6 of the Specific Relief Act regarding maintainability of the appeal against the decree which admittedly goes to the root of the matter. In the present case, the plaintiff’s prayer is to remove the wall from the suit passage. He has not claimed title over the said land and also claimed to restrain the defendant not to disturb him to use the passage. Therefore, the ratio decided in Nagar Palika Jind’s case is not applicable to the facts of the present case as it was held by the apex Court in para-9 as follows: “9. He has not claimed title over the said land and also claimed to restrain the defendant not to disturb him to use the passage. Therefore, the ratio decided in Nagar Palika Jind’s case is not applicable to the facts of the present case as it was held by the apex Court in para-9 as follows: “9. We fail to appreciate as to how the principle of Section 6 of the Specific Relief Act, 1963 can be applied in the facts and circumstances of the present case. The respondent, who was the plaintiff, never alleged that he had been dispossessed by the appellant-Municipal Committee. On the other hand, he claimed to be the owner of the land in question and asserted that he was in possession over the same. He sought for permanent injunction restraining the appellant from interfering with his possession. Both the parties led evidences in support of their respective claims including on the question of title.” 14. In the case at hand, plaintiff’s prayer is coming under the purview of Section 6 of the Specific Relief Act and the trial court has given the finding to that effect which has neither been challenged by the plaintiff nor the same has been dealt with by the appellate court. The question no.2 is answered accordingly. 15. The plaintiff has also not given the specification of the disputed property as described in Schedule-B of the plaint. He has only given the length and width of the disputed property appertaining to Khata No.1458, Plot No.232. The total extent of the area is Ac.3.770 decimals. He has also not specifically described as to in which side of the Schedule-A property, the Schedule-B property is situated. As such, the prayer of the plaintiff is liable to be rejected as the plaint does not describe the property to identify. 16. In the case of Bijaya Kumar Swain (supra), this Court has held that where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify 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. Where the suit is in respect of a part of a bigger blot or a portion of plot, in such event the description should be given which direction of the bigger plot the portion of the disputed property is situated. It is not correct to say that a portion of the plot or boundary be identified by giving boundaries thereof where further particulars are necessary for its proper identification of the suit property. The question no.1 is answered accordingly. 17. In view of discussions made above, the judgment and decree dated 25.8.2007 and 10.9.2007 respectively passed by the learned Addl. District Judge (FTC), Jeypore in RFA No.11/2007 (33/06 of District Judge) is set aside. The appeal is accordingly allowed. No costs. LCR be sent back immediately. Appeal allowed.