Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 1070 (ORI)

Bhismadev Si v. Sukamani Naik

2016-11-09

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. Plaintiff is the appellant against a confirming judgment in a suit for declaration of right, title, confirmation of possession and in the alternative for recovery of possession. 2. The case of the plaintiff is that he had purchased the suit schedule ‘A’ and ‘B’ property from Manguli Bewa and Tofa Bewa by means of a registered sale deed no.5457 dated 6.6.1975. Possession of the land was delivered. He had purchased an area measuring M.0-5-12-26 gandas, which was equivalent to Ac.0.15 dec., from sabik plot no.116 under sabik khata no.21. The same corresponds to hal plot no.325 under hal khata no.125. In the hal R.O.R., the area has been recorded as Ac.0.14 dec. instead of Ac.0.16 dec. The balance area measuring Ac.0.02 dec. either has been amalgamated in hal plot no.326 or 330. Plot no.326 has been recorded in the name of the defendants, whereas plot no.330 has been recorded in the name of Government. He filed a mutation application before the Tahasildar, Rasagovindpur in Mutation Case No.338 of 1982 for correction of R.O.R. Though the Tahasildar corrected his name in the R.O.R., but did not correct the area from Ac.0.14 dec. to Ac.0.16 dec. Thereafter he issued a notice under Section 80 C.P.C. to the Collector on 22.5.2000, vide registered letter no.3016. The same was received by the Collector on 23.6.2000. The Collector after receipt of notice directed the Settlement Authority to send a reply to the plaintiff. Thereafter the Settlement Authority informed him that they did not have any scope to take any action at their end and instructed him to take shelter in proper court for correction of the R.O.R.. 3. Pursuant to issuance of summons, defendant nos. 1 and 2 entered appearance and filed their written statement stating therein that in sabik as well as hal R.O.R., their ancestral property was recorded as Ac.0.31 dec. Thus, there is no question of amalgamation of any land of the plaintiff with their land. 4. The State-defendant no.3 has also filed a written statement. It is stated that plot no.330 under khata no.165 has been recorded in the name of the Government and the kissam is public road. It is further stated that the plaintiff from the date of purchase might have taken possession of an area measuring Ac.0.14 dec.. 4. The State-defendant no.3 has also filed a written statement. It is stated that plot no.330 under khata no.165 has been recorded in the name of the Government and the kissam is public road. It is further stated that the plaintiff from the date of purchase might have taken possession of an area measuring Ac.0.14 dec.. Accordingly, the Settlement Authorities after due field enquiry and measurement, recorded an area of Ac.0.14 dec. in the name of the plaintiff. 5. Stemming on the pleadings of the parties, the learned trial court framed seven issues. To prove his case, the plaintiff had examined two witnesses and on his behalf, three documents were exhibited. On behalf of the defendants, defendant no.2 was examined as D.W.1. The learned trial court on an anatomy of the pleadings as well as evidence, both oral and documentary, came to a conclusion that the plaintiff failed to prove in which plot an area measuring Ac.0.02 dec. has been amalgamated. The plaintiff has also failed to prove the proper description of the suit land as required under Order 7 Rule 3 C.P.C. It further held that the suit was barred by law of limitation in view of Article 58 of the Limitation Act. Held so, the learned trial court dismissed the suit. 6. Assailing the judgment and decree passed by the learned trial court, the plaintiff filed an appeal before the learned District Judge, Baripada, Mayurbhanj, which was transferred to the learned Additional District Judge, Baripada and renumbered as R.F.A.No.23/33 of 2010. The appeal was eventually dismissed. 7. Mr. Lenka, learned counsel for the appellant submitted that there is no denial by the defendants that shortage area Ac.0.02 dec. has been amalgamated in their plots. The courts below committed a manifest illegality in dismissing the suit. He further submitted that the case of the plaintiff is that the road situates on the south of the suit plot and defendant nos.1(a) & 2 are the adjacent owners to the east of the suit land and as such the suit plot is identifiable. Per contra, Mr. Biswal, learned counsel for the respondents supported the judgment. 8. The submission of Mr. Lenka, learned counsel for the appellant has no legs to stand. 9. Per contra, Mr. Biswal, learned counsel for the respondents supported the judgment. 8. The submission of Mr. Lenka, learned counsel for the appellant has no legs to stand. 9. The learned lower appellate court came to hold that it is the specific case of the plaintiff that he had purchased M.0-5-16-26 gandas of land by means of a registered sale deed bearing no.547 dated 6.6.1975, vide Ext.3, which was equivalent to Ac.0.16 dec. The suit land might be amalgamated either in plot No.326 or 330. The defendant nos.1 and 2 assert that plot no.326 recoded in their names. Plot no.330 recorded in the name of the Government. Since the plaintiff claims that the suit land might have been amalgamated in those plots, burden lies on him to prove the same. The plaintiff had not produced the respective R.O.Rs. recorded in the name of the defendants, nor took steps for production of the R.O.R. to ascertain whether the area of both the plots recorded in the name of the defendants either enhanced or decreased as per the sabik records. Had those documents been produced before the learned trial court, then it could be easily ascertained whether the suit land was amalgamated in plot no. 326 or 330. It further held that though the plaintiff relied upon the trace map, rent receipt, order in Mutation Case No.338/82, pleader’s notice dated 22.6.2000 and the reply of the Settlement Officer, Balasore-Mayurbhanj Major Settlement, but during course of trial of the suit not a single scrap of paper was exhibited. From the aforesaid oral evidence of the plaintiff, it is revealed that he does not know in which plot the suit land has been amalgamated, nor produced any contemporaneous document from which it could be ascertained. The findings of the learned appellate court cannot be said to be perverse. 10. In view of the discussions made in the preceding paragraphs, this Court is of the view that the appeal does not involve any substantial question of law and, accordingly, the same is dismissed.