Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 204 (ORI)

Brundaban Sahoo v. Rani Bewa

2015-03-25

D.DASH

body2015
JUDGMENT 1. The unsuccessful defendant in the Court below has preferred this second appeal against the judgment and decree passed by the learned First Additional District Judge, Puri in T.A. No. 32/21-02/01 confirming the judgment and decree passed by the learned Civil Judge (Sr. Division), Nimapara in Title Suit No. 3/180 of 2000/1988. 2. For the sake of convenience, clarity and to avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the Court below. 3. Te predecessor –in-interest of these represents as plaintiff had filed the suit for ejectment of the defendants from the suit land comprising of Ac. 0.1 dec. out of Ac. 0.12 dec. from the northern side of C.S. plot No. 706 under Sabik Khata NO. 62 corresponding to Plot No. 819 of an area Ac. 01 dec. adjacent to the road side land of the road connecting to Pipili to Astaranga via Nimapara-Kakatpur. It is stated that the land originally belonged to Bansidhar Sahoo and Jagannath Sahoo and others. It was lying vacant. Its importance came when weekly markets started running at Nayahat. The suit land is said to have been occupied by late father of the plaintiff by raising a thatched shed with the consent of the land owner way back in 1950-51. It is further stated that he was carrying on confectionery business thereon. When the business activity grew, he occupied a portion of the road side of PWD land and made another thatched house and started running a sweet meat stall. In the year 1962, the father of the plaintiff received a unregistered patta from the land owner in respect of the suit land. Te rent being settled in respect of the same, the land stood recorded in the name of the plaintiff in the settlement operation. However, due to objection by the land owner in the consolidation operation, possession note of the plaintiff was simply made. Thereafter, the plaintiff purchased the suit land under registered sale deed on payment of consideration, and accordingly said to have acquired title over the same. He got it recorded in his name in the consolidation R.O.R. It is further case that though the possession of the original plaintiff was recorded in respect of Ac. 01 dec. Thereafter, the plaintiff purchased the suit land under registered sale deed on payment of consideration, and accordingly said to have acquired title over the same. He got it recorded in his name in the consolidation R.O.R. It is further case that though the possession of the original plaintiff was recorded in respect of Ac. 01 dec. of land, the actual area was more than that for which at this stage of consolidation operation on spot verification the area of the land was noted as Ac. 0.02.dec. The plaintiff said to have demolished the old dilapidated sheds and built up the pucca structure with RCC roof with further construction of the side roof with asbestos roof and those got completed in the year 1988. The defendant, a co-villager had also purchased the portion of the land form out of the said plot belonging to the same land owner only under registered sale deed in the year 1982, who had also made some temporary structure over the same prior to the said purchase with the consent of the land owner. It may be mentioned here that both the plaintiff and defendant got the sale deeds on the same day. It is stated that after completion of the suit building the defendant requested the plaintiff to permit him to occupy the disputed house in question for a period of three to four months so that during that time he would be completing the pucca structure over the land bearing consolidation plot No. 818 under Khata NO. 260 measuring an area of Ac. 0.1 dec. The said request was acceded to. However, as the defendant did not demolish the kacha house and did not go for the pucca structure on his own land and allowed his own men to occupy old structure, suspicion arose in the mind and finally in May, 1988 defendant was asked to vacate which he did not pay any heed to. This has given rise to the suit as stated above. 4. Case of the defendant is that Sabik Plot No. 706 originally belonged to Sahoo family and a portion if it was let out to different persons in 1962 intending to have shop rooms thereon. The plaintiff has obtained permission to occupy Ac. 0.1 dec. adjacent to the road side and was so permitted to occupy Ac. 0.1 dec. to the south of the area allotted to the plaintiff. The plaintiff has obtained permission to occupy Ac. 0.1 dec. adjacent to the road side and was so permitted to occupy Ac. 0.1 dec. to the south of the area allotted to the plaintiff. It is further stated that there were other permanent room existing to the south of the area allotted to the defendant prior to the induction of plaintiff and defendant. It is further stated that only an area of Ac. 0.2 dec. which was allotted half each to the plaintiff and defendant were available at the spot. So, immediately after the allotment, the defendant claims to have raised kacha structure over an area of Ac. 0.1 dec. of land allotted to him and to have made existing pucca structure. It is his further case that the plaintiff after carrying on business for sometime in pucca structure reconstructed a portion of it by putting an asbestos roof. In the year 1982, the land owner proposed to execute the sale deed in support of the area allotted to the plaintiff and the defendant. The purchased area of Ac. 0.1 dec. of the plaintiff out of the Sabik Plot NO. 706 has been indicated in the sale deed with dimension of 20 links in the north-south and 50 links east – west. In the consolidation operation the Assistant Consolidation Officer recorded LR Plot No. 778 for an area of Ac. 0.1 dec. and it is said that the plaintiff managed to gain over the next higher authority, who without verifying the sale deed increased the area of Ac. 0.02 dec. observing that earlier recording of the area to be a clerical mistake. The defendant asserts that such increase of area though made in that record was actually not available there in the field. It is also pleaded that the pucca structure with RCC roof standing to the south of the area of the plaintiff is over a portion of plot no. 818 belonging to the defendant comprising Ac. 0.1 dec. and the same is in possession of the defendant alongwith the disputed structure. It is also pleaded that the pucca structure with RCC roof standing to the south of the area of the plaintiff is over a portion of plot no. 818 belonging to the defendant comprising Ac. 0.1 dec. and the same is in possession of the defendant alongwith the disputed structure. Thus, while claiming title over the suit land, an alternative case has also been set up that if the Court comes to the conclusion that the plaintiff’s title stands in respect of an area over which the disputed structure stand, in view of the long continuous and uninterrupted possession of the defendant since the year 1962, there has been acquisition of title by adverse possession and thus extinguishment of title of plaintiff. 5. With such rival pleadings the trial Court framed these issues and the parties have led evidence both the oral and documentary. The plaintiff when examined four witnesses including plaintiff no. 2 as P.W. 4 and proved documents Exts. 1 to 14, the defendant has also examined four witnesses including himself as D.W. 4. He has proved the evidence Exts. A to D. The principal issue is issue no. 4, which concerns the competing claim of right, title and interest by the parties with an assertion that the disputed house situated over plot purchased by the respective parties, i.e. Plot No. 819 and Plot No. 818 respectively. 6. Learned counsel for the appellant submits that since the Courts below have ultimately discarded the report and evidence of the Civil Court Commissioner and have kept it out the purview of consideration for the purpose of deciding the principal issue as stated above, fresh Survey Knowing Commissioner ought to have been deputed for rendering necessary assistance in arriving at a right conclusion, in exercise of power under Order 26, Rule 10(2) of the Code of Civil Procedure and that according to him would have been the correct approach so as to give rise to a just and proper finding on disputed fact. That not having been resorted to by the lower appellate Court the finding on the said fact is attacked as perverse without due support of any expert evidence. That not having been resorted to by the lower appellate Court the finding on the said fact is attacked as perverse without due support of any expert evidence. It is also his submission that the evidence relied upon by the Courts below in this connection are not at all sufficient to conclude either way and that deficit would have been only met, had there been deputation of fresh Survey Knowing Commissioner and only with his evidence being duly considered. Thus, he submits that it is a fit case for remand of the case to the trial Court after setting aside the finding for fresh adjudication of that issue upon which the fate of the suit hinges. In support of his contention he has placed reliance of the following decisions: (1) Shreepat Vrs. Rajendra Prasad &Ors, 2000(4) CCC 68 (SC) (2) Srimati Basanti Prusty Vrs. Srimati Manorama Samanta, 90 (2000) C.L.T. 288 and Kangali Ch. Sahu Vrs. Duryodhan Sahu and Others, 2001 (1) OLR-657. 6. Learned counsel for the respondents referring to the findings of the Courts below submits that the concurrent findings of fact recorded by the Courts below in holding that the suit building is situated over plot NO. 819 belonging to the plaintiff is not liable to be called in question in this second appeal being based on just and proper appreciation of evidence and the question of any perversity surfacing there from does not arise as nothing is available on record to show that some other relevant and admissible evidence have been overlooked from being taken into consideration or some inadmissible evidence have been taken into consideration to render the finding. He with vehemence contends that as provided in Section 100 of the Code of Civil Procedure, there remains no jurisdiction to entertain the second appeal on the ground of erroneous finding of fact, however, gross error may it be seen therein and simply because some other view can be taken on reappraisal of the evidence, the same is also no ground to disturb the concurrent finding. In support of such submission he has placed reliance in case of Deity Pattabhiramaswamy Vrs. S. Hanymayya &Others, A.I.R 1959 S.C.57, Navaneethammal Vrs. Arjun Chetty, A.I.R. 1996 S.C. 321, V. Ramachandra Ayyar and Others Vrs. Ramlingam Chettiar and another, A.I.R. 1963 S.C. 302, Narendra Gopal Vidyarthi Vrs. Rajat Vidyarthi, 2009 (3) S.C.C. 287 and Santosh Hazari Vrs. In support of such submission he has placed reliance in case of Deity Pattabhiramaswamy Vrs. S. Hanymayya &Others, A.I.R 1959 S.C.57, Navaneethammal Vrs. Arjun Chetty, A.I.R. 1996 S.C. 321, V. Ramachandra Ayyar and Others Vrs. Ramlingam Chettiar and another, A.I.R. 1963 S.C. 302, Narendra Gopal Vidyarthi Vrs. Rajat Vidyarthi, 2009 (3) S.C.C. 287 and Santosh Hazari Vrs. Pursushottam Tiwari (Deceased) By Lrs, 2001 (3) S.C.C 179 . he further contends that herein this case even discarding the report of the Civil Court Commissioner and his evidence when the lower appellate Court has found the evidence on record to be sufficient enough to answer the issue without slightest difficulty in a just and porper manner, the question of deputation of fresh Survey Knowing Commissioner is not the need as per Law. According to him, it would have been so necessary, had the Court been placed in a difficult situation to render the finding on the basis of existing evidence which is not the case here and rather the Court bellow has quite comfortably answered the issue without facing any hurdle in the said exercise and for the purpose going to take the aid of any such conjectures or surmises. So, he strenuously resists the contention of the learned counsel for the appellant for a remand with necessary such observation to that effect which according to him would simply serve the purpose of protracting the litigation and thereby encourage the wrongdoer, i.e. the defendant in enjoining the property in suit unlawfully much to the deprivation of the plaintiffs. 7. The appeal has been admitted on the following substantial question of law. “Whether the order of learned first appellate Court that after rejecting the report of Survey Knowing Commissioner in deciding the matter with the existing evidence and not deputing a fresh Amin Commissioner is in accordance with the settled position of law” 8. Now adverting to the facts of the case and giving a careful reading to the judgments of the Courts below, first of all it is seen that the first appellate Court in paragraph-7 to 11 of the judgment has taken up an arduous exercise in evaluating the evidence adduced by the parties vis-à-vis the report of the Commissioner on reappraisal and in its wisdom has found the following: “In view of such evidence, the disputed building has been constructed over plot NO. 819 appears more probable then the assertion of the defendant that he has constructed the building over plot No. 818. Accordingly, there is no reason or scope to differ from the finding of the learned lower Court that the plaintiff-respondents have constructed the suit building and have allowed the defendant-appellant to occupy temporarily but the defendant/appellant failed to vacate. In the result there is no merit in the appeal “ The trial Court as it appears has made a detailed and elaborate discussion of evidence and had concluded as under:- “So the aforesaid evidence of the witnesses examined on behalf of the defendant is quite categorical and consistent that the PWD road exists adjacent to the north of the shop of the plaintiff. The evidence of all the witnesses except the defendant who has been examined as D.W.4, the certified copy of Ext-10 & 11 and the statement of C.W.1 is that there is a land of PWD, i.e., Plot NO. 815 in between the land of the plaintiff and the PWD road. So when the restaurant is stuated adjoining to the south of the PWD road from Nimapara to Kakatpur and the plaintiffs are in possession of the PWD land, i.e., Plot NO. 815. There is every probability that the asbestos restaurant shop of the plaintiffis situated on the PWD land, i.e. Plot No. 815 and not in his plot 819” On further evaluation of evidence taking into consideration of minute details, it had concluded as follows: “This clearly lead to the conclusion that the thatched house in possession of Kelu Sahoo is situated in Plot No. 818 which belong to the defendant. Since the said thatched having 13 ft. North-South comes to around 20 links at the time of purchase the land in Sabik Plot no. 706 was available only within 20 links, it further confirm the position that the thatched under possession of Kelu Sahoo is situated in Plot NO. 818 which belong to the defendant and the suit building stands under Plot No. 819.” 9. The report of the Survey Knowing Commissioner having been dwelt in detail, suppression of some facts as regards the position of the asbestos building vis-à-vis the possession of the PWD plot No. 815 on one side and partly possession of thatched house situated to the south of the suit building on Plot NO. The report of the Survey Knowing Commissioner having been dwelt in detail, suppression of some facts as regards the position of the asbestos building vis-à-vis the possession of the PWD plot No. 815 on one side and partly possession of thatched house situated to the south of the suit building on Plot NO. 818 has been noticed in view of the fact that writ was issued only with limited point of finding out possession of the suit building. So, the lower appellate Court instead of rejecting the said report in toto has considered the same as a piece of evidence along with other evidence. 10. When the controversy between the parties is the area of the land or identification or location of an object or the land, local investigation is necessary, essential, requisite or proper. It is a sound exercise of discretion by the Court without anything more to go for appointment of a Commissioner. Its common experience that very often decision of the case turn on the identification or determination of the area and the evidence in relation thereto from its peculiar nature can only be had on the spot. Thus, the purpose is that of elucidation of the matter in dispute between the parties. Rule -9 of Order-26 of the Code provides that in a suit when the Court deems it necessary that a local investigation would be proper for the purpose to elucidating any matter in dispute, then it may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. The purpose is not for collection of evidence but for the limited purpose of appreciating the evidence which the parties led in course of the trial. It is only to obtain evidence which from its peculiar nature can only had on the spot. 11. Exactly the similar question as of the instant case was posed in case of Kunjabehari Mohanty Vrs. Kishore handra Jagadev Ray, 73 (1992) C.L.T. 187. In the said case the appellate Court rejected the Commissioner’s report. So, the question arose whether it was required to remit the matter to the trial Court for appointment of a fresh Commissioner and getting a fresh report as a matter of course. In view of few earlier decisions of this Court, the matter was referred to the larger Bench. In the said case the appellate Court rejected the Commissioner’s report. So, the question arose whether it was required to remit the matter to the trial Court for appointment of a fresh Commissioner and getting a fresh report as a matter of course. In view of few earlier decisions of this Court, the matter was referred to the larger Bench. Where the question came up for consideration as to whether the appellate Court when rejects a Commissioner’s report which is merely an item of evidence in the case can dispose of the appeal on the residue of materials or is bound to remit the matter to the trial Court with a direction to appoint a fresh Commissioner for the purpose. On detail discussion of plethora of case laws, the ultimate pronouncement has been as under “ This being the position of law, we have no hesitation to hold that an appellate Court when rejects a Commissioner’s report is not bound to remit the matter to the trial Court for appointment of a fresh Commissioner and getting a fresh report in every case. It would be fully within its jurisdiction after rejecting the Commissioner’s report to decide the appeal on the residue of evidence if it is possible on the part of the Appeallate Court. But where the nature of dispute is such and the appellate Court after rejecting the Commissioner’s report is not in a position to decide the dispute on the residue of the evidence, then in such a case it will have to remit the matter to the trial Court with a direction to appoint a fresh Commissioner for obtaining a fresh report. The observation of R.N. Mishra, J in Akadesi Harichandan’s case (1970 (1)) C.W.R. 244 was because of the peculiar facts and cirmcumstances of that case and the decision of Acharya, J. in Debendranath Nandi’s case (39(1973) C.L.T. 180) must be held to have not been correctly decided. In view of our aforesaid conclusion, the second appeal may now be placed before the learned single Judge for disposal on merits.” In view of above, either the trial Court or the appellate Court when rejects the report of the Commissioner either in whole or in part and his evidence on the score of the local investigation is accordingly discarded to the extent. It is not the trite law that in every such case the Court has to go for appointment of a fresh Commissioner. The Court of course have to take resort to that only when while going to decide the issue on the residue evidence in view of the nature of dispute is unable to come to a position to decide the dispute on the residue evidence. 13. The decision cited by the learned counsel for the appellant in case of Shreepat (supra) concerns with completely different facts and circumstances. In that case despite of the dispute with regard to the identity of the land and area as well as the boundaries, the Court without going for appointment of a Commissioner has decided the issue. Hence direction was given to take recourse to that as thereby serious miscarriage of justice have been found to be taken place. In case of Srimati Basanti Prusty (supra) this Court in the second appeal found that during pendency of the suit an application that had been filed under Order-26, Rule 9 of the Code which was rejected and that again being filed before the first appellate Court, it was also not favoured with. In view of the nature of dispute when the main question related to the boundary dispute the Court felt it appropriate and in the interest of justice, for deputation of a Survey knowing Commissioner for the purpose of measurement of the disputed land as well as the land of the plaintiff within the boundary wall and the land of the defendant. So, the facts and circumstances of the cited case are completely distinguishable from the case in hand. In case of Kangali Charan Sahu (Supra), the trial Court had deputed a Survey Knowing Commissioner and this report was rejected at the stage of judgment. The Court in the facts and circumstances of the case found that when it was rejected in toto in the final judgment in the facts and circumstances of that case a fresh Commissioner should have been deputed. The facts and circumstances as those emerge out in the instance case and the situation with which we are now faced are completely different. 14. Coming to the case in hand, admitted position is that the consolidation plot Nos. The facts and circumstances as those emerge out in the instance case and the situation with which we are now faced are completely different. 14. Coming to the case in hand, admitted position is that the consolidation plot Nos. 819 and 818 belonged to the plaintiff and defendants respectively who purchased the said land from one Bansidhar Sahoo on 04.02.1982, an area of Ac. 0.01 dec. each. Both plots correspond to a portion of Sabik Plot no. 706. Both the plots are equal in size and each of the parties are in possession of their respective purchased land. Plot No. 818 belongs to the defendants and, i.e. situated to the North of Plot No. 819. The position stands undenied that at the time of execution of sale deed in favour of both the parties there was nonavailable of area of 20 links X 50 links for each of the purchasers and for that reason the dimensions of L.R. Plot NO. 778 mentioned in the sale deed Ext. 2 executed in favour of the plaintiff has been scored through. The evidence of D.Ws. 1 to 3 is to the effect that the plaintiff is in possession of a portion of the PWD land adjoining to the North of plot no. 819. The Civil Court Commissioner being deputed has given his report that adjoining to the North of the consolidation plot NO. 819 belonging to the plaintiff there was another plot bearing number 815 of the dimensions of North South, 15 links and East- West 50 links of PWD lands which adjoins to its further North. So, the aforesaid evidence consistently go to show that to the North of Plot No. 819, Plot No. 815 stands and to the further North the road running from Nimapara to Kakatpur runs. The report of the Commissioner was not challenged on the aspects of the dimensions of Plot NO. 818 and 819 in consolidation map to be 15 links North-South and 45 links East-West though originally at the time of purchase a 20 links/50 links in Sabik Plot NO. 706 was not available to each of the purchasers. The said report of the Commissioner has been appreciated together with other evidence available on record and the trial Court then has concluded as stated in aforementioned Para-8. 706 was not available to each of the purchasers. The said report of the Commissioner has been appreciated together with other evidence available on record and the trial Court then has concluded as stated in aforementioned Para-8. However, the trial Court found the Commissioner’s report to have reflected the correct picture about the size of the plot and in that position of the map. Suppression has been noticed in respect of the position of asbestos building vis-à-vis the position of the P.W.D Plot NO. 815 on one side and partly position of the thatched house situated to the south of the suit building on Plot No. 818. SO, the report was not rejected in toto nor his evidence was discarded in entirety. Later, it has been considered along with other evidence the finding has been rendered. 15. The first appellate Court on reappraisal of evidence has concurred with the said finding of the Court below having not faced with any deficiency or difficulty in arriving at the conclusion in finally rendering the answer to that issue no. 4. Rather, the deficiency noticed in the said report and evidence of the Commissioner has been found to have been made good in view of other evidence on record. Thus, no necessity for fresh deputation of the Commissioner having not been felt the course has not been deputed. Thus, this Court finds no such error even to have been committed by the Courts below in not deputing the Civil Court Commission afresh and in the absence of further report and evidence on the score of such suppression in view of evidence available on record being duly considered by the Courts below in rendering the finding on fact which is concurrent, there even surfaces no such illegality or infirmity much less to say the same to be the outcome of perverse appreciation of evidence. The submission of the learned counsel for the appellant thus gets repelled. The substantial question of law formulated at the time of admission stands accordingly answered. 16. In the result the appeal stands dismissed. The parties, in the facts and circumstances, are to bear their respective cost throughout. Appeal dismissed.