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2016 DIGILAW 13 (ORI)

Amiya Parida (dead) by L. Rs v. Parasuram Khatua

2016-01-06

D.DASH

body2016
JUDGMENT : 1. The appellants in this appeal have called in question the judgment and decree passed by the learned Sub-ordinate Judge, Kendrapara in T.A. No. 4/894/89 confirming the judgment and decree passed by the learned Munsif, Kendrapara in T.S. No.297/78. The respondent no. 1 as the plaintiff had filed the suit for permanent injunction against the appellant-defendants from dispossessing him from the suit land and further restraining respondent-defendant nos. 1 and 2 from issuing any patta in favour of the other defendants. The suit having been decreed, the present appellants as the unsuccessful defendants had carried the appeal. As no such fruitful result has yielded in their favour, they have approached this Court with the present second appeal. 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. Plaintiff’s case is that the suit land originally belonged to the Ex-Proprietor of Burdhwan estate. It is stated that the plaintiff being a landless person, he was in possession of the same with the permission of the Ex-Proprietor of the said estate having reclaimed the same and made it fit for cultivation. After vesting of the estate with the State in the year 1951, he continued to remain in possession of the said land as before. In the year 1977, he was inducted as a tenant by the defendant no. 2 in respect of the suit land and a patta was issued in his favour. He paid the rent for the same. It is stated that though the defendant nos. 3 to 13 have got no semblance of right, title and interest or possession over the suit land, they threatened him to dispossess. It is alleged that the defendant nos.1 and 2 also gave threat to cancel the patta and resettle the suit land in favour of the defendants. Therefore, the suit was filed. 4. Defendant nos. 5, 6, 8, 11 and 13 coming to contest the suit filed joint written statement. They denied the claim of the plaintiff in toto. Their case is that Bala Krushna Swain, Hare Krushna Swain and others were originally the recorded occupancy tenants of the Ex-Proprietor of Burdhawan estate in respect of the suit land. In the year 1944, they surrendered their occupancy tenancy in favour of the Ex-Proprietor. They denied the claim of the plaintiff in toto. Their case is that Bala Krushna Swain, Hare Krushna Swain and others were originally the recorded occupancy tenants of the Ex-Proprietor of Burdhawan estate in respect of the suit land. In the year 1944, they surrendered their occupancy tenancy in favour of the Ex-Proprietor. The suit land was then jungle land. It is stated that thereafter, Pulin Bihair Das, Jamini Dasi, Bana Bihari Das and others took lease of the suit land from the Ex-Proprietor in the year 1950 and they reclaimed the same and made it fit for cultivation. The defendants claim to have taken the suit land on lease from them and were inducted as tenants after vesting of the estate with the State and also purchased the same from the rightful occupancy tenants. So they claim right, title, interest and possession over the suit land. Defendant no. 2 in the written statement however admitted that a patta in favour of the plaintiff in respect of the suit land vide Lease Case No. 149/76-77 was granted. 5. With the above rival pleadings, the trial court framed in total ten issues. Besides the technical objections, the crucial issue in the suit is issue no. 8 which concerns with the right, title, interest and possession over the suit land as claimed by the plaintiff and denied by the defendants. This issue being taken up for decision, the trial court on evaluation of evidence on record has finally recorded a finding in favour of the plaintiff. Answer on this issue has ultimately led the trial court to decree the suit for permanent injunction as prayed for. The appellate court on independent evaluation of evidence as it appears has concurred with the same. 6. The appeal has been admitted on the following substantial questions of law:- “i. Whether on the facts and circumstances and pleadings in the case the suit for permanent injunction simpliciter was maintainable? ii. Whether the courts below erred in not properly considering the material documents Exts. F.G.H and J ? iii. Whether the courts below erred in injuncting the defendant nos. 1 and 2 from exercising their power to cancel the alleged lease in favour of the plaintiff?” 7. Learned counsel for the appellants has confined his submission on the first two points and the third one is not urged nor so elaborated in the note of written submission. iii. Whether the courts below erred in injuncting the defendant nos. 1 and 2 from exercising their power to cancel the alleged lease in favour of the plaintiff?” 7. Learned counsel for the appellants has confined his submission on the first two points and the third one is not urged nor so elaborated in the note of written submission. He submits that in view of the rival pleadings, the suit for injunction simpliciter as laid is not maintainable. According to him, the courts below in the present suit ought not to have entered into the arena of deciding the question of right, title and interest of the parties over the suit land as the suit is for permanent injunction simpliciter. It is further submitted that when the defendants have refuted the title of the plaintiff and assert their own title, the determination of question of title stands as imperative and in view of that, the plaintiff was under the legal obligation to seek for declaration of title and in the absence of the same there was no other alternative for the court but to dismiss the suit, the reason being that in a suit for injunction simpliciter, question of title cannot be gone into and decided. He next contends that the courts below ought to have non-suited the plaintiff for lack of proper description of the suit land with its due identity and that being the position, the suit is liable to be dismissed. 8. Learned counsel for the respondents on the contrary submits that here the defendants have failed to prove better title than the plaintiff and when the plaintiff has been successful in proving through oral and documentary evidence, his title in respect of the case land, there remains no occasion to say that the suit for permanent injunction simplicter as laid by the plaintiff is not maintainable. He also contends that the courts below having concurrently held the suit land’s description to be proper as required under law and it being not vague and unidentifiable, this Court should not interfere with that finding as no such perversity in the matter of appreciation of the evidence is shown. 9. He also contends that the courts below having concurrently held the suit land’s description to be proper as required under law and it being not vague and unidentifiable, this Court should not interfere with that finding as no such perversity in the matter of appreciation of the evidence is shown. 9. It is the settled position of law that a true owner or a person having possessory title can file a suit for injunction against a trespasser but if the defendant refutes his claim and asserts his own title, then so as to grant the relief of permanent injunction, the determination of question of title becomes necessary but it has to be seen that such refuting and assertion are not colourable. 10. In case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) By L.Rs. and others, (2008) 4 SCC 594 , the Apex Court considering plethora of its earlier decisions has summarised the position as under:- (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.” 11. In order to address the rival contentions in the light of the principle of law laid down by the Apex Court, let us advert to the pleadings of the parties. The suit property measures Ac.2.00 decimals under Plot No. 333 appertaining to Khata No. 24 and is situated in Mouza Kanasarabadadandua under Kalapada P.S.. The plaintiff claims to be in possession of the same initially with the permission of the Ex-Proprietor of Burdhawan estate and then after vesting on being inducted by the defendant no. 2 followed by issuance of patta and payment of rent thereof. The plaintiff claims to be in possession of the same initially with the permission of the Ex-Proprietor of Burdhawan estate and then after vesting on being inducted by the defendant no. 2 followed by issuance of patta and payment of rent thereof. On the other hand, the contesting defendants claim that Bala Krushna Swain, Hare Krushna Swain and others were originally recorded occupancy tenants under Ex-Proprietor in the year 1944 and thereafter Pulin Bihari Das, Jamini Dasi, Bana Bihari Das and others took lease of the same from the Ex-Proprietor in the year 1950, made it fit for cultivation by reclaiming the same and the defendants took lease of the suit land from them and as such were inducted as tenants after vesting of the estate with the State. It is also their case that they have purchased the same from the original occupancy tenants and thus got their right, title and interest over the suit land. Both the courts below in clear and categorical terms upon detail analysis of evidence and their evaluation have conclusively held that the plaintiff has been in possession of suit land since more than 20 to 25 years. Besides the oral evidence let in from the side of the plaintiff, even the settlement Khatian of the year 1930 (Ext. E/1) proved by the defendants also indicate that the land was settled in favour of the plaintiff by the Ex-Proprietor of Burdhawan estate. This evidence of the defendants rather show possession of the plaintiff. Moreover, P.W. 6 has proved the settlement of land in favour of plaintiff in Lease Case No. 149/76-77 (Ext.4) and he has also proved the delivery of possession of the same stating the identity vide Ext.6 and Ext.6/a. The pattas are Exts.7 and 7/a whereas the rent receipts are Ext.8 series. The claim of the purchase of the suit land as laid by the defendants vide Exts. L, M, N, T and Q have been held to be no consequence because those do not relate to the land under Khata No. 24 and rather relate to land under Khata nos. 78, 79 and 80. So also the rent receipts proved from their side Exts. B to B/12 have been held to be of no avail for them because those do not concern with the land under Khata No. 24. Similarly, the report of the Amin and other documents Exts. 78, 79 and 80. So also the rent receipts proved from their side Exts. B to B/12 have been held to be of no avail for them because those do not concern with the land under Khata No. 24. Similarly, the report of the Amin and other documents Exts. F to H have been found to be having no nexus with the land under Khata no. 24. The oral evidence let in by the defendants having been examined in great detail, the same have been found to have neither disproved the case of the plaintiff nor established the defendant’s case. The courts below have discussed the evidence of each of the witnesses examined on behalf of the defendants and have accordingly held the averments made by the defendants in the written statement to be colourable. In view of above concurrent finding holding the field, the plaintiff having clear title and possession having sued for injunction thus should not be driven to the costlier and more cumbersome remedy by way of a suit for declaration when the claim of the defendants has not been substantiated by such acceptable evidence and when it is seen to have rather been made in a vexatious manner. Therefore, the first contention of the learned counsel for the appellants is not acceptable. 12. Coming to the other question raised in this appeal as regards vague identity of the suit land, it is seen that the courts below have made discussion of the evidence on record in this regard. The courts below have found the land described in the plaint to be proper and being described with boundary. Amin report proved in the case Ext.6 gives the sketch map which has been admitted in evidence and marked Ext.6/a. The courts below have concurrently held that there arises no such ambiguity in the description of the suit land. The conclusion arrived at is not seen to be the outcome of perverse appreciation of evidence. In that situation non-examination of boundary witnesses or independent witnesses is of no such fatal consequence. The contention raised by the learned counsel for the appellants on this score thus fails. 13. In the result, the appeal stands dismissed and in the facts and circumstances without cost.