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2016 DIGILAW 1118 (ORI)

Damodar Behera v. Nabaranglal Agrawal

2016-11-18

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. The defendants are the appellants against the confirming judgments. 2. Respondents as plaintiffs instituted Civil Suit No.15 of 2002 in the court of the learned Civil Judge (Junior Division), Bargarh for declaration that the defendants are strangers having no right or title over the suit land, for eviction, permanent injunction and damages. The case of the plaintiff is that Smt. Durga Devi Agrawal and her husband Jagannath Agrawal purchased Schedule-A land in the year 1969. They were in possession of the suit land and paid rent to the Government. The plaintiff being the son of the recorded tenants succeeded to the property. The defendants were in search of a site for running their business. They approached the plaintiff to give the suit land on rent basis. Since the defendants started construction over the suit land forcibly, the plaintiff filed the suit. 3. Pursuant to issuance of summons, defendants 1 to 3 and 5 have filed a joint written statement denying the assertions made in the plaint. The specific case of the defendants is that defendant no.1 was running the hotel in the name and style “Alok Mistan Bhandar” adjacent to the north of the existing house of the plaintiff. In Title Suit No.17 of 2001, the plaintiff had admitted the existence of the shop of the defendant no.1 to the adjoining north of his house and had not claimed ownership over the suit land. The shop of defendant situates over a Government land, which is north of the house of the plaintiff. Encroachment proceeding was initiated against him by the Tahasildar, Bargarh. The shop was demolished by the District Administration, Bargarh. It is further stated that the plaintiff had never objected the possession of the defendants and their construction over the suit land. Therefore, the case of the plaintiff for eviction of the defendants from the suit land is barred by the principle of acquiescence and estoppel. They are in possession of the suit land for more than 35 years and the same has not been the purchased land of the plaintiff. 4. Defendants 7, 8 and 9 have filed written statement supporting the claim of the plaintiff. Defendants 4 and 6 were set ex parte. 5. On the inter se pleadings of the parties, learned trial court struck nine issues, which are as follows: “1. Is the suit maintainable ? 2. 4. Defendants 7, 8 and 9 have filed written statement supporting the claim of the plaintiff. Defendants 4 and 6 were set ex parte. 5. On the inter se pleadings of the parties, learned trial court struck nine issues, which are as follows: “1. Is the suit maintainable ? 2. Has the plaintiff any cause of action to file the suit ? 3. Is the suit land properly described in the plaint ? 4. Is the suit land a part of purchased land of ancestors of the plaintiff ? 5. Are the defendants strangers to the suit land and have got no right, title and interest over the same ? 6. Have the defendants made attempt to raise construction over the suit land ? 7. To what reliefs plaintiff is entitled ? 8. Are the contesting defendants liable to be evicted from the suit land ? 9. Are the contesting defendants liable to pay damage to the plaintiff ?” 6. The plaintiff had examined one witness and on his behalf, eight documents had been exhibited. The defendants had examined two witnesses and on their behalf, ten documents had been exhibited. Learned trial court came to hold that the suit land is properly described in the plaint and the same is a part of the purchased land of ancestors of the plaintiff and answered issue nos.3 and 4 in favour of the plaintiff. The defendants are strangers to the suit land and they have no semblance of right, title and interest over the suit land and answered issue no.5 in favour of the plaintiff. The relief of permanent injunction and damage was refused. Learned trial court decreed the suit. Assailing the judgment and decree of the learned trial court, the defendants filed RFA No.38/13 of 2004-2006 before the learned Addl. District Judge, Bargarh, which was eventually dismissed. 7. Heard Mr. Ghose, learned counsel for the appellants and Mr. Bhuyan, learned counsel for the respondents. 8. Mr. Ghosh, learned counsel for the appellants, submits that the defendants have their respective shop rooms over a piece of Government land. The District Administration initiated encroachment cases and demolished their shop rooms. Subsequently they have constructed cabins over the said piece of Government land. Ghose, learned counsel for the appellants and Mr. Bhuyan, learned counsel for the respondents. 8. Mr. Ghosh, learned counsel for the appellants, submits that the defendants have their respective shop rooms over a piece of Government land. The District Administration initiated encroachment cases and demolished their shop rooms. Subsequently they have constructed cabins over the said piece of Government land. The appellate court has given a specific finding that the defendants have no connection with the suit land and even if they have got possessory right over a Government land, they are at liberty to assert it, but the same has no bearing on the purchased area of the plaintiff. Both the courts below have not given any specific findings as to whether the appellants were in possession of either on the land described in Schedule-A or over the land in M.S Plot No.3517, which is a Government land. He further submits that the plaintiff has not sought for declaration of right, title, interest and possession over the suit land. He has only prayed for a declaration that the defendants have no title over the suit property. When the plaintiff claimed that the defendants were in possession over the suit land, the plaintiff ought to have prayed for declaration of right, title and interest over the suit land, more particularly, when he had admitted to have not in possession over the suit land. He further submits that none of the courts below have given a specific finding regarding the identity of the suit land. Both the courts below have held that the suit land is identifiable. There is no finding with regard to the possession of the defendants. The defendants claimed that they are in possession over Plot No.3517. There is no pleading regarding the date of entry of the defendants upon the suit land. He further submits that the possession of the defendants over the land for last 35 years has not been considered by the courts below. 9. Per contra, Mr. Bhuyan, learned counsel for the respondents, submits that against the concurrent finding of facts, the appeal has been filed. Both the courts below negatived the plea of the defendants. 10. Learned appellate court came to hold that after purchase, the parents of the plaintiff mutated the land in their favour vide Ext.8. 9. Per contra, Mr. Bhuyan, learned counsel for the respondents, submits that against the concurrent finding of facts, the appeal has been filed. Both the courts below negatived the plea of the defendants. 10. Learned appellate court came to hold that after purchase, the parents of the plaintiff mutated the land in their favour vide Ext.8. With regard to identity of the land, learned appellate court came to hold that in the body of the plaint, M.S. Khata number and Plot number of the suit land along with the boundary are given vide Schedule-A. In the sale deed, the detail particulars of the suit land and the other land which was also purchased vide Ext.H are mentioned. The defendants in their evidence have also stated so. Ext.6, which is prepared as per the major settlement record, supports the plea of the plaintiff. In the cross-examination, defendant no.1, who was examined as D.W.1, has stated about the location of the suit land. According to him, the suit land is of Ac.0.03 dec. Ext.6 also indicates the situation of Plot No.9633, which is the suit land. Furthermore, the plaintiff in his evidence has also stated about the same. So there is no confusion about the identity of the suit land. It further held that the description given by the defendant no.1 in his cross-examination coincides with the suit schedule land. The plaintiff has given the description of the suit land in his evidence also. The suit land is not a Government land. The defendants have no semblance of right, title and interest over the same. Held so, learned appellate court dismissed the appeal. 11. There is no perversity or illegality in the findings of the courts below. The appeal does not involve any substantial question of law. Accordingly, the same is dismissed.