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2015 DIGILAW 318 (ORI)

Rebati Khuntia v. Debi Prasad Rath

2015-05-08

D.DASH

body2015
JUDGMENT 1. These appellants were the defendants in the suit filed by the respondents for issuance of perpetual injunction restraining these defendants from entering into the suit space. 2. For the sake of convenience to avoid confusion and for clarity, the parties hereinafter have been referred to as they have been arrayed in the court below. Plaintiffs case is that in the year 1971 he had purchased land measuring Ac. 0.08 decimals from Sabik plot No. 588, plot Sabik Khata No. 21 and two years thereafter he constructed a building on the portion of the said land. It is stated that he had left a space of 12 feet width on the western side of his building and that is the suit space. This was being used as space for the plaintiff goes to the backside of his building. It is further case of the plaintiff that over this space, he had a terrace of 3 ft. width, a window projection (taja) and also a mini well. The plaintiff had constructed compound wall on all the sides of the suit plot. As at one point of time there was resistance from the side of the defendants by not allowing the plaintiffs workers to go for white washing of the building by standing over the said suit space, the plaintiff had to approach this Court claiming relief of permanent injunction against the defendants. Alternatively, it is stated that the plaintiff has been in possession of this suit space for more than 25 years and thus has perfected title by adverse possession and the title of the defendants, if any, should extinguished long since. 3. The defendant No.1 while traversing the plaint averments and denying the claim of the plaint has advanced a counter claim stating that boundary wall of the defendants running adjacent to the building of the plaintiff was broken by the plaintiff. So, he prayed for issuance of permanent injunction against the plaintiff from not creating any disturbance like that any more. 4. The trial Court having framed 11 nos. of issues, has answered issue no. 5 & 9 in favour of the plaintiff and against the defendants and has practically gone to decree the suit and dismiss the counter claim. An appeal being carried by the• defendants has not yielded any fruitful result. 4. The trial Court having framed 11 nos. of issues, has answered issue no. 5 & 9 in favour of the plaintiff and against the defendants and has practically gone to decree the suit and dismiss the counter claim. An appeal being carried by the• defendants has not yielded any fruitful result. The learned Additional District Judge at it appears from the judgment has further gone to analyze the evidence on record in judging sustainability of the finding rendered by the trial Court on issue no. 5 & 9. The lower appellate Court has made an elaborate discussion of evidence and having gone for critical analysis of the same at his level has concurred with the finding of the trial Court. Thus it is a case where both the Courts have rendered concurrent finding that the suit space was used by the plaintiff and the defendants as no cause of action to file the counter claim. So, the factual aspects presented by the plaintiff with regard to leaving of space beyond his building, putting compound wall, extending the projection of the window and a terrace with digging of mini well and using it as passage have been concurrently found to have been proved. 5. The appeal has been admitted on the following substantial question of law:- 1) Whether in the absence of specific description of suit schedule property in the plaint, the Courts below have rightly passed the decree for permanent injunction and if so whether such a decree is executable? 6. Learned counsel for the appellant submits that the plaintiff has not described the property in question in the plaint in accordance with the provision of Order -7 Rule-3 of the Code of Civil Procedure in as much as there is no reference to the boundaries, no exact measurement of the suit space in relation to the settlement map etc. therefore, he contends that the Courts below have erred in law in decreeing the suit and the decree that has been passed is vague and is executable. 7. Learned counsel for the respondents contends that the finding of both the Courts are absolutely flawless being based upon proper appreciation of evidence as regards the suit space being used by the plaintiff as the space exercising right of ownership over there. 7. Learned counsel for the respondents contends that the finding of both the Courts are absolutely flawless being based upon proper appreciation of evidence as regards the suit space being used by the plaintiff as the space exercising right of ownership over there. Therefore, he contends that when such findings do not suffer from the vice of perverse appreciation of evidence, there remains no scope for interference in this appeal. He next contends that when the parties have ultimately gone for trial, there has remained absolutely no dispute with regard to the identity of suit space. It is further submitted that when the defendant himself has laid a counter claim over the very suit space, their challenge with regard to description of the suit space in the paint as vague is some how self-contradictory. In view of such rival submission, when the schedule of the plaint describing the suit space in gone through, it is seen that with all detail description, the space has been shown giving its width from the western side wall of the plaintiff and length from the road from north with further indication as regards other identifiable place. The suit space vis-a- vis the building has been vividly stated. Moreover, in this case although in a generalized manner the defendants have taken a plea about improper description of the suit space, but they having advanced a counter claim seeking the relief of permanent injunction against this plaintiffs with respects to the said suit space. So, it is not understandable as to how now they can fallback to argue that the suit space is not properly described. 8. The very purpose of order -7 rule -3 of the Code is :- "To ultimately see that the decree that would be passed would stand for its due execution and that is should not fail on the ground of technicality as regards improper description of the suit land which would remain un-identifiable causing surprise and prejudice to the adversary. Order -7 rule 3 of the Code mandates that the description of the suit land should be such as to be ascertained with sufficient identification. Order -7 rule 3 of the Code mandates that the description of the suit land should be such as to be ascertained with sufficient identification. The objective behind it is to see that the party having obtained the decree should remain in a position to 'enjoy it fruit instead of being deprived of the same and that the findings standing either against the plaintiff or defendant as the case may be must bind both so far as there competing claims in respect of the suit land is concerned also that it should not lead a situation that the defendant is deprived of establishing his right if any over that very subject matter or to challenge the claim of plaintiff over it taking specific defence" 9. It is seen that the contention with regard to non-compliance of provision of order-7 rule 3 of the Code has been raised from the beginning and decided by the Courts below. In this connection, the learned Additional District Judge as it appears has further gone to critically examine the evidence of P.W. 1 to 3 and also that of D.W. 1 who is none other than defendant no. 4. The Courts below have found the evidence of the plaintiff to be consistent in providing detail description of the suit building and suit space. In the instant case, D.W. 1 has also stated about the suit space that it is a strip of land of 12'X30' ft. by further categorically speaking that it was to the western side of the said building. In view of such evidence on record, when the fact also remains that the defendants have lodged a counter claim in respect of that very suit space, the Courts below can under no circumstances be said to have erred in passing the decree for permanent injunction. The parties having fought out the suit having clear idea with regard to the space forming the subject matter of the suit there remains no further scope for the defendants to raise the said question as in this case there was no surprise at all to the defendants and the parties are well aware of the identifiable suit space. The parties having fought out the suit having clear idea with regard to the space forming the subject matter of the suit there remains no further scope for the defendants to raise the said question as in this case there was no surprise at all to the defendants and the parties are well aware of the identifiable suit space. For the aforesaid discussion and reasons, this Court finds that the Courts below have rightly decreed the suit filed by the respondent which in view of the description of the suit property is but executable against the defendants in case of disobedience or breach. The substantial question of law framed for this appeal is accordingly answered. 10. Resultantly the appeal stands dismissed and in the peculiar facts and circumstances of this case, no order as to cost is passed.