Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 1004 (ORI)

Pramila Moharana v. Rajendra Kumar Behera

2016-11-01

D.DASH

body2016
JUDGMENT : 1. This appeal has been filed challenging the judgment and decree passed by the learned Ad hoc Addl. District Judge, Fast Track Court No. III, Cuttack in Title Appeal No. 51 of 2000 confirming the judgment and decree passed by the learned Civil Judge (Jr.Divn.), First Court, Cuttack in Title Suit No. 63 of 1990. The predecessor-in-interest of these appellants namely, Lokanath Moharana and appellant nos. 6 to 8 as the plaintiffs had filed the suit for permanent injunction against the respondent-defendants restraining them from interfering with the possession over the property described in schedule-A of the plaint with this sketch map as at schedule-B and from making any construction thereon. The suit having been dismissed, these appellants who were pursuing the suit upon the death of the original plaintiff no.1 with other plaintiffs had carried first appeal under Section 96 of the Code of Civil Procedure and that having been dismissed, the present second appeal has come to be filed under Section 100 of the Code. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiffs case is that the property described in schedule-A of the plaint was owned and possessed by one Narayan Mohanty and his sons and as such stood recorded in their name in the record of right in the year 1973. Plaintiff’s father and plaintiff nos. 2 to 4 purchased land measuring Ac.0.03 decimals out of Ac.0.04 decimals under that C.S. plot no. 1518 recorded in khata No. 261 by registered sale deed dated 6.8.84 from Narayan and as such they possessed the same. It is said that after said purchase, the rest of the land measuring Ac.0.01 decimal under that very sabik plot was no longer in existence as it had been encroached upon by the western side adjoining land owner. The plaintiffs claim to be in peaceful possession of their purchased land all along. It is next stated that Narayan Mohanty further sold that land measuring Ac.0.01 decimal under that C.S. plot to the defendants by registered sale deed dated 29.1.90. The plaintiffs claim to be in peaceful possession of their purchased land all along. It is next stated that Narayan Mohanty further sold that land measuring Ac.0.01 decimal under that C.S. plot to the defendants by registered sale deed dated 29.1.90. So he was never in possession of the same and thus on the basis of purchase of the land which was actually not available either free or with Narana in the field, but as they created trouble in the peaceful possession of the plaintiffs so far as their purchased land is concerned and tried to take possession of Ac.0.01 decimals from them. Therefore, the suit had to be filed when the defendants did not stop in such illegal activity. The defendants contesting the suit have averred that the plaintiffs having purchased Ac.0.03 decimals of land from Narayan Mohanty are in possession of the same. From the very date of sale, the land measuring Ac.0.01 decimal on the southern side was in possession of one Narayan Mohanty and that he has sold to the defendants in the year 1990. It is stated that Narayan Mohanty was possessing the said Ac.0.01 decimal of land towards southern side of plot no. 1815 by amalgamating with his land under plot no. 1563 and putting green fence around bringing the entire land under plot nos. 1860, 1862, 1863 and 1864 in a compact block. The defendants claim to have taken delivery possession of land Ac.0.01 decimal and that is said to be separate and distinct from the purchased land of the plaintiffs. The plaintiffs allegation that this Ac.0.01 decimal under plot no. 1518 belonging to Narayan Mohanty had been encroached by western side adjoining land owners, has been refused as false and baseless. It is alleged that the move of the plaintiffs is to grab more land then the extent of the land that they have purchased might be by creating sketch map of their own on getting it appended to the sale deed without the knowledge of their vendor who was rustic and a simple ton old man. It is said that from the beginning the move was to grab this Ac.0.01 decimal of land in excess and thus to deprive their vendor. These defendants are not disputing the plaintiffs’ right, title, interest and possession in so far as their purchased land of the extent of Ac.0.03 decimals is concerned. It is said that from the beginning the move was to grab this Ac.0.01 decimal of land in excess and thus to deprive their vendor. These defendants are not disputing the plaintiffs’ right, title, interest and possession in so far as their purchased land of the extent of Ac.0.03 decimals is concerned. The defendants claim to have amalgamated their purchased land of Ac.0.01 decimal with their own land situating nearby and to have thus been in possession of the same. 4. Faced with such rival pleadings, the trial court framed in total eight issues. Rightly taking up issue nos. 4, 5 and 6 together for decision concerning the rival claim of the parties upon evaluation of evidence in the touchstone of the pleading has finally answered those against the plaintiffs in clearly holding the defendants to be in possession of their purchased land of Ac.0.01 decimal with their other land. This has practically resulted in dismissal of the suit refusing the plaintiffs to be granted with the relief of permanent injunction as prayed for. 5. The lower appellate court being moved as is seen from the judgment has proceeded to examine the sustainability of the above findings of the trial court by scrutinizing the evidence at its level and that too independently. The plaintiffs have finally been non-suited since the lower appellate court has not been able to search out any reason to interfere with the findings of the trial court. 6. The appeal has been admitted on the substantial question of law as indicated in para-ii of the memorandum of appeal which is reproduced herein below :- “When the boundary as shown in the sketch map attached to the plaint as well as to the R.S.D. dtd.6.8.84 does not show regarding availability of any exert of land in plot No. 1518 to the South, whether the courts below are justified in dismissing the plaintiffs suit without giving a clear finding regarding availability of any land to the south of plaintiffs purchased land, so as to be sold to the defendant.” 7. Learned counsel for the appellants contends that both the courts below have not gone to examine the evidence in ascertaining the correctness of the case of the plaintiffs as regards non-availability of any land more than the extent of Ac.0.03 decimals out of C.S. plot no. Learned counsel for the appellants contends that both the courts below have not gone to examine the evidence in ascertaining the correctness of the case of the plaintiffs as regards non-availability of any land more than the extent of Ac.0.03 decimals out of C.S. plot no. 1518 towards the south when the plaintiffs purchased the same as also side by side to ascertain as who were in possession of the same when the plaintiffs purchased the land in the year 1984 and whether that extent of land was under encroachment of the western adjoining land owners. Therefore, according to him, the finding that the defendants having purchased Ac.0.01 decimal of land are in possession of the same is wholly perverse and the fate of the suit being dependent upon it, the same is liable to be reversed. According to him, it is a fit case for open remand to the trial court to answer the issues as above afresh by providing further opportunity to the parties to lead evidence, if they so desire. 8. Learned counsel for the respondents on the other hand contends that there has been a concurrent finding of fact on the score that the plaintiffs has been in possession of his purchased land measuring Ac.0.03 decimals from out of C.S. plot no. 1518 which he has claimed and clearly stated in the schedule of the plaint. So when that is the case of the plaintiffs, the burden of proof is on them to establish that after they took over the possession of the land that they purchased from Narayan Mohanty, no more land was left in that plot and it was under the encroachment of others. He further contends that since the plaintiff has purchased the land measuring Ac.0.03 decimals and that has been found to be in their possession which is not denied by the defendants, the courts below have rightly refused to grant any relief of permanent injunction as prayed for. So he contends that the substantial question of law as framed has to be answered against the plaintiffs when they have failed to establish the same and here also nothing has been shown from evidence that such a finding can be so recorded. 9. Admittedly, the extent of land under C.S. plot no. 1518 was Ac.0.04 decimals. The plaintiffs have purchased land measuring Ac.0.03 decimals from out of it. 9. Admittedly, the extent of land under C.S. plot no. 1518 was Ac.0.04 decimals. The plaintiffs have purchased land measuring Ac.0.03 decimals from out of it. This factum is not denied by the defendants. The defendants now claim to have purchased the residue land measuring Ac.0.01 decimal from out of that C.S. plot no. 1518. The very sale deed relied upon by the plaintiffs has been admitted in evidence and marked Ext. 2. Besides the description of the land that they have purchased being given therein, a trace map stands attached to the sale deed and that forms a part of it. It is found therefrom that plot no. 1518 has been marked in yellow colour and its extent has been shown as Ac.0.03 decimals whereafter there remains the redline between the boundary of the said land under plot no. 1518 and the purchased land of the plaintiffs showing it as vacant portion remaining as such on the western side of plot no. 1518. The registered sale deed standing in the name of defendants admitted in evidence and marked. Ext. B shows their purchased land of Ac.0.01 decimals from that plot no. 1518 along with land of other plots. The trace map attached to that sale deed clearly shows the land so purchased was the vacant land lying after sale to the plaintiffs with a redline being put away from the western boundary of plot no. 1518. When the plaintiffs very much rely upon the sale deed in their favour to establish their case, the very sale deed shows as clear as day that there vacant land was left in that plot no. 1518 after sale to the plaintiffs. There is no mention of any encroachment of the same and it is clearly shown as the residue land of that plot remaining with Narayan. The vendor Narayan Mohanty is the owner of plot nos. 1862 and 1863 which are the adjoining the plot to plot no. 1518. The claim of encroachment of the Ac.0.01 decimal of land of plot no. 1518 by other western adjoining tenants clearly appears to be a falsehood when that Narayan, the common vendor is the owner of plot nos. 1861 and 1863 which stand on the west of the suit land. 1518. The claim of encroachment of the Ac.0.01 decimal of land of plot no. 1518 by other western adjoining tenants clearly appears to be a falsehood when that Narayan, the common vendor is the owner of plot nos. 1861 and 1863 which stand on the west of the suit land. This has been dealt in detail by the lower appellate court in the judgment in finally concluding that the plaintiffs having purchased Ac.0.03 decimals of land from out of plot no. 1518, are in possession of the same whereas the defendants are in possession of Ac.0.01 decimal from that plot no. 1518 which is the residue land after sale of Ac.0.03 decimal to the plaintiffs. The plaintiffs have not adduced any such evidence that this Ac.0.01 decimal of land has remained in encroachment of anyone else. Therefore, the courts below are found to have committed no such error in recording the finding in finally non-suiting the plaintiffs as the factual aspect of encroachment of that Ac.0.01 decimal of land under plot no. 1518 has remained unestablished by the plaintiff. 10. The aforesaid discussion and reasons provide necessary answer to the substantial question of law which goes against the appellants. 11. In the result, the appeal stands dismissed and in the facts and circumstances without cost.