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2015 DIGILAW 473 (ORI)

Lord Jagannath Mahaprabhu v. Laxmikanta Pradhan

2015-08-13

D.DASH

body2015
JUDGMENT : D. Dash, J. 1. The defendants are the appellants against the reversing judgment passed by the learned District Judge, Puri in Title Appeal No. 62 of 1995. The respondents as the plaintiffs has filed the suit for permanent injunction in respect of the land measuring Ac.1.92 decimals come under seven plots in the Town of Puri. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the court below. It may be stated that the original plaintiff having died during pendency of appeal before the lower appellate court, his legal representatives are prosecuting the appeal. 2. The case of the plaintiff is that the defendant No. 2 Lord Jagannath Mahapravu- Bije- Shri Purusottam Khetra, Puri is the owner of the suit land whose character is 'Amruta Monohi'. The Mahamta of Radhakanta Matha was the marfatdar. In course of management of the affairs of math and properties under his marfatdarship; one Babaji Gour Govinda Das was engaged by him to look after the garden known as "Ai Tota" which is the land of an extent of Ac.6.00 and odd. It is further stated that during Car Festival huts are being constructed over the same to provide accommodation for the devotees and pilgrims. This Gour Govinda Das in course of time being in charge of looking after the properties, converted the suit land to kitchen garden and thereafter having constructed the hut over there began to reside. He then claimed the tenancy right over the suit properties. The plaintiff was then a Mohrir (Advocate's Clerk) and was looking after the affairs of Math. He was approached by the then Hereditary Trustees of the Math for necessary advise for eviction of said Gour Govinda Das and for necessary help. It was agreed that in that event, he would be rewarded being given with two acres of land. Finally aforesaid two acres of land was granted by way of lease and for the sake of evidence, there had come into existence an unregistered deed on 15.02.1970. The plaintiff also alternatively advances the claim of title by way of adverse possession. 3. The defendants aver that the plaintiff was merely the Gumastha of the Math and he was provided with a room for his residence in such capacity. The plaintiff also alternatively advances the claim of title by way of adverse possession. 3. The defendants aver that the plaintiff was merely the Gumastha of the Math and he was provided with a room for his residence in such capacity. Unregistered deed dated 15.02.2970 is challenged that it is forged one having no sanction in the eye of law. The maintainability of the suit with the reliefs as prayed for is seriously questioned on the ground that the properties described in the plaint as the suit property is not identifiable for an effective decree if any to be passed, even an acceptance of the claim of the plaintiff. Maintainability of the suit is further challenged for non-impletion of Commissioner of Endowments as a party and none service of notice. Further averments in the written statement are that the estate came into vested on 18.03.1974 and the land in question was settled in favour of the defendants on 16.10.1979. Thus the plaintiff cannot claim any interest therein when he himself was taking step on behalf of the defendants in the said proceeding and as well as before the settlement authority on behalf of the Matha. It is stated that the plaintiff was taking all required steps in O.S. No. 283 of 1974 in the court of Munsif, Puri as Gumastha of the Matha and thus he is precluded from advancing any claim, adverse to the Math. The State recognized the defendants to be the owner of the land in question and the compensation having been awarded to the defendants consequent to the acquisition of a portion of garden, the claim of the plaintiff is said to be wholly untenable. A stand also been taken that the suit for injunction as laid is not maintainable without the prayer for declaration of title. 4. On such rival pleadings, trial court framed necessary issues and rendered the following findings: "(i) The unregistered permanent lease deed on which the plaintiff relies is not admissible in evidence for want of registration and it is invalid being contrary to the provisions of the Orissa Hindu Religious Endowments Act. (ii) The plaintiff was never a tenant under the defendants and had not acquired any title by prescription in respect of the suit land. (iii) The defendants are the owners of the suit land. (ii) The plaintiff was never a tenant under the defendants and had not acquired any title by prescription in respect of the suit land. (iii) The defendants are the owners of the suit land. (iv) The suit property has not been correctly described for which no relief can be granted to the plaintiff. (v) The plaintiff having not established his lawful possession over the suit property is not entitled to the relief of injunction." 5. With the aforesaid findings, the suit have been dismissed, the plaintiff carried an appeal (Title Appeal No. 1/34 of 1988). The appellate court set aside the judgment and decree holding that the plaintiff had acquired right of tenancy by prescription. So the relief of injunction was granted. The defendants then preferred the Second Appeal No. 410 of 1989. By judgment dated 15.12.1993, this Court remanded the matter to the trial court for the limited purpose of identification of the property that the plaintiff possessed by payment of rent to the defendants. This Court held that the lease purported to have been created under the Ext. 1 is void from the inception for want of registration as well as lack of sanction of the competent authority under O.H.R.E. Act. So the document did not create any right in favour of the defendants in respect of the land descried therein. Thus the status of plaintiff vis-à-vis the land in suit was not held to be as that of the lessee and as such he was denied the right of a lessee either under Ext. 1 or by of his possession if any by the date of vesting or b y the date of the suit. This Court in the Second Appeal found the plaintiff to be in possession of the some land out of the suit land belonging to the defendants-deity and that for the said possession, rent was collected by the Matha as the Marfatdar of Amrutmanohi property. The Court had observed that the description of the property given in the plaint however was not sufficient for providing proper identification of the land. Then next, it was held that when the plaintiff in the possession of some land by payment of rent to the Matha Marfatdar, he may be entitled to maintain his possession until evicted in due process of law. Then next, it was held that when the plaintiff in the possession of some land by payment of rent to the Matha Marfatdar, he may be entitled to maintain his possession until evicted in due process of law. This judgment of the Second Appeal passed by this Court was challenged before the Hon'ble Apex Court by the defendants in S.L.P No. 6765 of 1994. The Hon'ble Apex Court by order dated 13.05.1994 dismissed the said appeal directing the trial court to identify the property and consequently pass order as directed by this Court. The order passed by this Court thus having been confirmed by the Hon'ble Apex Court, the matter came thereafter before the trial court. The plaintiff then amended the schedule of property providing the rough sketch map. This amendment was challenged in Civil Revision No. 1/46 of 1994 and that was dismissed. So, the amendment stood. Plaintiff thereafter sought for appointment of survey knowing commissioner under order 26, Rule 9 of the Code of Civil Procedure. The prayer having been allowed, the commissioner was deputed for the purpose of identification of the suit land. He submitted his report. Finally, the plaintiff did not adduce any evidence in the suit, when the defendants examined three more. 6. The trial court now answered the question as posed by this Court in the Second Appeal, while remanding the matter which was affirmed by the Hon'ble Apex Court taking up the exercise of scrutiny of the evidence with regard to identification of the suit land. For the purpose, it has taken into consideration the schedule of land given in the plaint. After amendment, the report of the survey knowing commissioner, the draft khatian of the suit property and the order of settlement of the land in favour of the deity in Claim Case No. 92 of 1974 providing schedule of land by the O.E.A. Collector-cum-Tahasildar, Puri and other evidence with regard to description of the property. Finally answer has been given that the description of the property given in the plaint schedule is not in conformity with the property demarcated/identified by the commissioner as reported and provided in the map. Further answer has been given that it is not in conformity with the land which finds mention in the draft khatian. Finally answer has been given that the description of the property given in the plaint schedule is not in conformity with the property demarcated/identified by the commissioner as reported and provided in the map. Further answer has been given that it is not in conformity with the land which finds mention in the draft khatian. In view of the all these, the trial court has held the description of the suit property given in the plaint to be insufficient for its identification. So it held that with such insufficient evidence as regards the identification of the property described in the plaint, the relief of injunction as prayed for cannot be passed in favour of the plaintiff and against the defendants. The suit thus ended with dismissal. The plaintiff then carried Title Appeal bearing T.A. No. 62 of 1995. 7. The learned District Judge, Puri by judgment dated 20.03.1999 again remanded the suit to the trial court with a direction to decide the same keeping in view the direction of this Court in Second Appeal No. 410 of 1989. This was challenged by the plaintiff before this Court in M.A. No. 338 of 1999. This Court on that occasion by order dated 07.01.2003 directed the appellate court to dispose of the appeal on its merit by clearly holding that all those observations made by the appellate court for the purpose of remand of the suit again to the trial court to decide the suit in conformity with the judgment of this Court in Second Appeal to be untenable. Thereafter, on remand of the appeal, the learned District Judge by judgment dated 13.05.2003 has allowed the appeal reversing the judgment and decree of the trial court and decreed the suit of the plaintiff for permanent injunction against the defendants. The ordering portion of the judgment runs as under:-- "In the result, the appeal is allowed on contest against the respondents but in the circumstances without any cost. Impugned judgment and decree of the learned trial court are set aside. The suit of the plaintiff is decreed and consequently the defendants are permanently restrained from dispossessing the plaintiff-appellants from the suit land." 8. Impugned judgment and decree of the learned trial court are set aside. The suit of the plaintiff is decreed and consequently the defendants are permanently restrained from dispossessing the plaintiff-appellants from the suit land." 8. The Second Appeal has been admitted on the following substantial questions of law : "(i) Whether the lower appellate court is correct and justified in reversing the decision of the trial court without giving good reason for not accepting the finding of the trial court as regards insufficiency of materials on record to identify the property said to be in possession of the plaintiff by acceptance of rent particularly when the description of the suit property in the plaint schedule was not in conformity either with the report of the commissioner or the land particulars given in the draft khatian (Ext. K) and the evidence on record did not lend any support to identify the land and thus the suit land was totally unidentifiable vide order dated 07.09.2004? (ii) Whether a decree for permanent injunction can be passed against the land lord permanently restraining him from dispossessing the tenant vide order dated 23.11.2012?." 9. Learned counsel for the appellant submits that the trial court had in detail discussed all the evidence on record as regards identification of the suit property. The lower appellate court in slipshod manner without going to examine the defensibility of the trial court's finding as to the question as to whether the description of the suit and its identification simply relying on the Commissioner's report has concluded that the trial court has committed an error in dismissing the suit. He further contends that the findings of the trial court on that issue of sufficiency of evidence for identification of the suit land as described in the plaint ought not to have so lightly disturbed by the appellate court without discussing the evidence on record and without having arrived at an independent conclusion on that score contrary what had been held by the trial court by specifically indicating that the reasons assigned by the trial court are not proper. Therefore, he urges that the said conclusion of the lower appellate court is not tenable in the eye of law. Therefore, he urges that the said conclusion of the lower appellate court is not tenable in the eye of law. It is his next contention that in view of the order passed by this Court in Second Appeal No. 410 of 1989 as confirmed by the Hon'ble Apex Court, the lower court has committed gross error of law by passing the decree for permanent injunction against the Landlord and restraining from dispossessing the plaintiff forever. According to him, even in the event the lower appellate court would have held the plaintiff to be entitled to the relief in view of the clear discussion of the subject by this Court in the above Second Appeal, the decree of permanent injunction ought to have been that the plaintiff would remain in possession until he is evicted by following the due process of law. It is his submission that it being unthinkable that the decree for permanent injunction is permissible to be passed against the Landlord restraining him from recovering possession from the tenant for all times to come in future which in turn is a decree declaring the plaintiff's right to possession of the property as if having non-evictable right. 10. Learned counsel for the respondents on the other hand supports the order of the lower appellate court. According to him, the finding of fact given by the lower appellate court is based on report of the survey knowing commissioner and this Court should not render its own finding as it is not permissible for re-appreciation of the evidence. It is his further submission that the trial court had committed grave error in passing the judgment and decree by going behind the direction given by this Court in Second Appeal No. 410 of 1989 and that has been rightly rectified by the lower appellate court. He further submits that the judgment and decree of the lower appellate court are wholly in conformity with the order passed by this Court in Second Appeal No. 410 of 1989 and Misc. Appeal No. 338 of 1999, basing upon the report of the civil court commissioner, which is clear. 11. Keeping in view the rival submission, let us take up the exercise of answering the substantial questions of law as involved in this appeal. Appeal No. 338 of 1999, basing upon the report of the civil court commissioner, which is clear. 11. Keeping in view the rival submission, let us take up the exercise of answering the substantial questions of law as involved in this appeal. The discussions of the trial court as regards the in sufficiency of the identification of the suit property, which ultimately has led the trial court to refuse to pass the decree as that of would be unenforceable land issue un-executable are there at para 8 to 14 of the judgment. The lower appellate court has dealt it at para-10 of its judgment. It is seen that the lower appellate court has very rightly said that the duty of the court is to see if the identification of the suit land has been properly made or not as that was what had been held in second appeal and for which limited purpose the matter was remitted. However, having said so, the abrupt conclusion is that the proper identification has been made through civil court commissioner and there was no further occasion for by the trial court to decide that in any manner. While so saying the lower appellate court has forgotten the position of law that simply because the report of the civil court commissioner with the conclusion arrived at in the report is accepted, the court has still the scope of saying the report as incorrect if by taking into the consideration the same with same, the conclusions are not found acceptable. The power appellate court has in this connection writes as under:-- "In view of the clear detailed report of the civil court commissioner available on record, the trial court has gone wrong in dismissing the suit on the ground that the description of the suit of the property is not sufficient for its identification." The dismissal of the suit is apparently wrong without any basis and lastly the order is that the suit of the plaintiff is decreed and consequently the defendants are permanently restrained from dispossessing the plaintiff-appellants from the suit land". 12. The suit property described in schedule of the plaint comprises of six full plots and one plot in part as per the record of the sabik settlement. That part plot bears number 62 and in total it measures Ac.4.790 decimals, out of which Ac.1.743 decimals is the suit land. 12. The suit property described in schedule of the plaint comprises of six full plots and one plot in part as per the record of the sabik settlement. That part plot bears number 62 and in total it measures Ac.4.790 decimals, out of which Ac.1.743 decimals is the suit land. It reveals from the order of the O.E.A. Collector-cum-Tahasildar in Claim Case No. 92 of 1974 marked Ext. G. Ext. 1, the basis on which the plaintiff claims to be in possession of the suit land all along concerns with land of Ac. 1.923 decimals. The version of the plaintiff on oath is that in the year 1981 there was acquisition of Ac.0.500 decimals by the Municipality out of the total lease hold area for construction of the road for the Bus Stand for which the lease hold area is one compact block got divided into two blocks, one lying with the southern and other to the northern. However, the schedule of the plaint goes to show that the Municipality had acquired Ac0.480 decimals. Thus there again crops up the discrepancy in total area of land in dispute. The rent receipt Ext. 2 is silent on the total area of plot No.62. The trial court has gone through the Commissioner's report, maps and the field book. The report shows that during the measurement, the Commissioner had referred to the settlement map of 1989 and as well as hal not final map. Admittedly both the maps are not as per one scale. However, the report remains silent that for super imposition either the scale one map was reduced to be inconsonance with the other map or scale of the other map was increased for the purpose. This is of much importance and its non-mention in the report puts the court at dark as regards proper identification of the land. The trial court has found this to be the first infirmity. It has noted that the description of the property given in the plaint which should have in conformity with the property demarcated or identified by the commissioner and the plaint particulars given in draft khatian Ext. K as well. On comparison it has been found to be not in accord with one another. For the purpose, the trial court has described the detailed reasons and said that the plaintiff has only given the dimension in hal final plot in the schedule. K as well. On comparison it has been found to be not in accord with one another. For the purpose, the trial court has described the detailed reasons and said that the plaintiff has only given the dimension in hal final plot in the schedule. It is next seen from the report of the Commissioner that the suit land comprises of three strips and he has reported as to land described under which sabik plot corresponding to which hal plot are there in each of the strip. However, on calculation the report as regards the total area of southern block stands in with the corresponding area given in the plaint schedule i.e. Ac0.925 as against reported to be Ac0.728 decimals. Then again it is seen that as per the report, the suit property is Ac.1.858 decimals which is different from the claim advanced in the plaint as regards the extent of Ac1.923 decimals. This is irreconcilable. Apart from that when the Commissioner states that the disputed land measures an area of Ac.1.378 decimals, in the plaint schedule the same is stated to be Ac.1.443 decimals. This goes without any explanation by the plaintiff so as to be taken into consideration for reconciling the discrepancy. No such evidence is stated to have been led. There is no material on record to show as to from sabik plots corresponding to which hal plot, the acquired area was reduced. Therefore, the trial court's view is that in spite of amendment of the schedule of the plaint in respect of the description of the suit property, the said averments of the plaint, and the evidence of the original plaintiff are not reconcilable is not found fault with. Another glaring fact is noticed that the description of the property and the report of the commissioner go to show that for construction of the road acquisition of land was from out of the plots 58, 62, 65 and 66. When such is the state of thing as described, the sabik plot No. 58 however is not seen to be a part of the suit property. The other one remains that when Ext. K shows hal plot No. 832 measures Ac.1.672 decimals corresponding to sabik plot Nos. 56, 65, 66 and 67, curious enough land under plot No. 67 is not there as a part of the suit property. The other one remains that when Ext. K shows hal plot No. 832 measures Ac.1.672 decimals corresponding to sabik plot Nos. 56, 65, 66 and 67, curious enough land under plot No. 67 is not there as a part of the suit property. The report of the Commissioner contradicts the plaint schedule in so far as the assignment of the plot number as to the road. Plaint schedule when gives that road appertains to hal plot No. 832, the report goes to state that it appertains to hal plot Nos. 832 and 833. Due to this the description of the property as regard the land area of road cannot be accepted in toto. It has also been noted that the plaint schedule shows that an area Ac.052 decimals out of the plot No. 833 forms a part of the suit property in southern block. At the same time, Ext. K shows that the plot No. 833 measures Ac.0.273 decimals in total and that corresponds to sabik plot Nos. 58 and 62. This sabik plot No. 62 as found from Ext. G comprises of an area of Ac.4.790 decimals. So in that respect, the report of the commissioner does not provide support to the plaint schedule, which also does not find mention of the land under Plot No. 833. Ext. K, the khatian negates the report of the commissioner that the southern block of the suit property corresponds to sabik plot No. 55 which has come from hal plot No. 832. Similarly, the total area of plot Nos. 829 i.e. Ac 0.015 decimals does not tally with the corresponding area of the sabik plot No. 64 whose total area is Ac0.050 decimals as mentioned in the plaint schedule. The same is the state of affair in respect of hal plot No. 830. In view of all these infirmity, the trial court having said that the said report of the survey knowing commissioner does not come to the aid of the plaintiff for receiving a finding that the suit land has been sufficiently described for its proper identification, this Court finds all the justification for the same. In that view of the matter, the trial court has rightly held that the burden lying upon the plaintiff for establishing the fact that the land described in the plaint schedule as the suit property is sufficient enough for identification has remained undischarged. In that view of the matter, the trial court has rightly held that the burden lying upon the plaintiff for establishing the fact that the land described in the plaint schedule as the suit property is sufficient enough for identification has remained undischarged. Thus it has been rightly answered by the trial court against the plaintiff. The lower appellate court as already stated has erred in law by even without examining the sustainability of the infirmities in the report of the commissioner as pointed out by the trial court as also other irreconcilable discrepancies as noted by it. The finding is simply accepting the report of the commissioner as the conclusive evidence on the score of sufficiency of the description and identification of the suit property. 13. It had already been held in the earlier Second Appeal that in the absence of sufficient description of the suit property for its proper identification, no effective order of injunction can be passed against the defendants. Therefore, the plaintiff is found to have not been able to establish those aspect by clear, cogent and acceptable of evidence. So that precondition for grant of injunction having remained unfulfilled, there arises no question of favouring the plaintiff by a decree of injunction which in that event will not be effective. 14. The first substantial question of law receives its answer from the aforesaid discussions that the lower appellate court is not justified in reversing the decision of the trial court as regards insufficiency of the materials on record with regard to the description of property in the plaint for due identification. In view of that the second one does no more survive for being answered. In the result, the appeal stands allowed, and in the peculiar facts and circumstances of the case without cost throughout. The judgment and decree dated 13.05.2003 and 18.05.2003 respectively passed by the lower appellate court in T.A. No. 62 of 1995 are hereby set aside and the judgment and decree dated 29.04.1995 and 21.06.1995 respectively passed by the learned Civil Judge (Junior Division), Puri in O.S. No. 21 of 1983-I are thus restored. The suit of the plaintiff as laid thus stands dismissed.