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2016 DIGILAW 181 (ORI)

Kamal Sundar Pattnaik v. State of Orissa

2016-03-03

D.DASH

body2016
JUDGMENT This appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge, Gajapati-Parlakhemundi in T.A. No. 15 of 2000 reversing the judgment and decree passed by the learned Civil Judge (Sr. Division), Parlakhemundi in Title Suit No. 150 of 1998. The appellant as the plaintiff had filed the suit arraigning the respondents as defendants for declaration of his right, title, interest and possession over the suit and with further declaration that the encroachment proceeding initiated vide LEC No. 03 of 1980 and 2159/1982 are void and also for a permanent injunction against the respondent-defendants. 3.Plaintiffs case is that the suit land as per the description given in the plaint was purchased by his father way back in the year 1962-63. It originally belonged to Parlakhemudi Zamindari under the ownership of Raja Krushna Chandra Gajapati Deo of Parlakhemundi. It is stated that he had hold the same to one Raghab Charan Pattnaik by registered sale-deed in the year 1961-62, who in turn sold those lands to plaintiff’s father by registered sale-deed dated 23.12.1962 and 21.08.1963 and since then plaintiff’s father remained in cultivating possession of the suit land which being succeeded by the plaintiff continued to be as such in his hands. It is alleged that in the year 1980, Tahasildar, Parlakhemundi initiated an encroachment proceeding bearing LEC No. 03 of 1980 against the plaintiff’s father in respect of land under plot No. 940 and 973 which were not in the possession of the plaintiff and thus he had no interest over the same and kept no track about the final order. Against in the year 1992, the Land Encroachment Case No. 2159 of 1992 was initiated against the plaintiff in respect of five plots and that proceeding was also in respect of these suit plots as also land under other plots. So, the plaintiff therein advanced his claim over three plots i.e., plot no. 940, 942 and 973. It is stated that his claim was not duly considered and arbitrarily the order of eviction was passed. However, physically, he was never evicted. It is also alleged that in the last settlement operation, the land has been erroneously recorded in Government’s Abadajogya Anabadi Khata as then the father could not produce any document. 940, 942 and 973. It is stated that his claim was not duly considered and arbitrarily the order of eviction was passed. However, physically, he was never evicted. It is also alleged that in the last settlement operation, the land has been erroneously recorded in Government’s Abadajogya Anabadi Khata as then the father could not produce any document. However, it is stated that the father of the plaintiff as well as the plaintiff all along remained in possession of the suit land and at no point of time, the State was ever in possession of the same being not its owner. In a partition suit between the family members of the plaintiff, the suit is said to have fallen in the share of the plaintiff and it is alleged that on 25.11.1998 a Government Amin went to demarcate the suit land for the purpose of making a road and as the said act went to cast shadow over the right, title, interest and possession over the plaintiff over the suit land, the suti has been filed. 4.The defendant-respondents in the written statement have categorically pleaded that the land under plot No. 945 and 946 have been recorded in the State Khata as per record of the year 1979 and that has been rightly so done since the plaintiff has no manner of right, title and interest over the same. It has been pleaded that the suit land was in illegal occupation of one Suresh Ch. Mishra for which he has been duly evicted pursuant to an order in that light in an encroachment proceeding. It is also stated that the encroachment cases were instituted against five persons including the father of the plaintiff since they were in illegal possession of different plots of land belonging to the State. The order of eviction having been passed against them those had been called in question by carrying appeal and revision and said moves have not yielded any fruitful result for them. Those orders are thus said to have attained finality. It is the specific case that the father of the plaintiff was found to have encroached the land under plot No. 940 and 973 which were the suit land and in the year 1992 when encroachment proceeding was initiated against one B. Jaganaikulu in respect of suit land under plot no. 945 and 946, the case was not contested. It is the specific case that the father of the plaintiff was found to have encroached the land under plot No. 940 and 973 which were the suit land and in the year 1992 when encroachment proceeding was initiated against one B. Jaganaikulu in respect of suit land under plot no. 945 and 946, the case was not contested. The plaintiff had suo moto appeared in the proceeding and had filed objection pleading Jaganaikulu to be his representative and in the said proceeding final order of eviction was passed on 09.02.1993. Pursuant to the same, the encroacher was physically evicted. Plaintiff having filed appeal, it was dismissed on 28.06.1994. It is further pleaded that in the Major Settlement, the land under suit plot no. 945 and 946 have remained within the Gajapati Stadium compound in physical occupation of the Department of Sports of the State and some portion remained beyond the compound wall which is being used by the people of the locality as public road. It is next stated that the plaintiff had never raised any claim over the suit plots either in the encroachment case or before the settlement authority or he raised any voice when compound wall of the Stadium was erected long back. Possession of the plaintiff over the suit land is also denied. With all these above, they prayed to non-suit the plaintiff. 5.The trial Court having framed seven issues on the above rival pleadings has answered issue concerning the right, title and possession of the suit land in favour of the plaintiff and in view of that the orders passed in the encroachment cases were also held as void and accordingly the plaintiff was found entitled to the reliefs prayed for which were granted in his favour. 6.The defendants being aggrieved by the said judgment and decree passed by the trial Court carried an appeal under Section 96 of the Code of Civil Procedure. In the said appeal, the findings of the trial Court on the vital issues were called in question. The lower appellate Court as it appears on independent analysis of evidence and upon their evaluation has gone to hold the findings of the trial Court to be unsustainable and hence the present second appeal has come to be filed at the instance of the unsuccessful plaintiff who has been non-suited by the lower appellate Court. The lower appellate Court as it appears on independent analysis of evidence and upon their evaluation has gone to hold the findings of the trial Court to be unsustainable and hence the present second appeal has come to be filed at the instance of the unsuccessful plaintiff who has been non-suited by the lower appellate Court. 7.Learned counsel for the appellant submits that the following is the substantial question of law which arises for certification for admission of the appeal. Whether the findings and observations of the learned lower appellate Court are sustainable in the eye of law for non-consideration of material evidence available on record? 8. The claim of the plaintiff-appellant over the suit land is based upon the sale-deeds dated 23.11.1962 and 21.08.1963 standing in favour of his father executed by one Raghaba Ch. Pattnaik. In the said suit, however the plaintiff has proved only the sale-deed dated 23.12.1962, and that having been marked as Ext. 9 the other sale-deed has not seen the light of the day. But the two sale-deeds said to have been executed by Raja Krushna Chandra Gajapati Deo in favour of the vendor of the plaintiff’s father namely, Raghab Cha. Pattnaik have been proved as Ext. 10 and 11. The land in possession by the father of the plaintiff is concerned with some portions of land under plot no. 99/1. There remains no evidence on record whatsoever to come to a conclusion that the suit plot bearing no. 945 and 946 correspond to plot no. 99/1. The lower appellate Court in this connection having gone to address the submission of the learned counsel for the plaintiff has taken exception of the fact that as to why in the report of the Amin in LEC Case No. 03 of 1980, mention was made about plot no. 99/1 and 99/3 when report was called for only in respect of plot no. 99. It has also found no material to have been placed that the suit plot under Hal plot No. 945 and 946 correspond to the land under sabik plot no. 99/1, when the report of the Amin Ext. 1 states it to be a part of sabik plot no. 99. 99. It has also found no material to have been placed that the suit plot under Hal plot No. 945 and 946 correspond to the land under sabik plot no. 99/1, when the report of the Amin Ext. 1 states it to be a part of sabik plot no. 99. It has also been taken note of the non-production of the document such as the rent roll or any other document as regards the settlement of the suit land in the name of Shri Krushna Chandra Gajapati. In view of the above, when the lower appellate Court has found that the plaintiff has failed to show that the suit land was actually the purchased land as has been averred in the plaint, this Court finds the same to be well in order. The suit of the plaintiff is based on title asserting the same to have been clothed upon his father on account of purchase. In view of that the burden of proof rests upon the plaintiff to establish by leading, clear and acceptable evidence that the suit land was the said purchased land which however in the present case appears to have not at all been discharged. It has been the averments in the plaint that the encroachment case bearing no. 03 of 1980 was initiated by his father and the subject matter, there was the suit land. The record of the encroachment case has been placed before the Court. Plaintiff’s father had filed an objection marked Ext. J in the said encroachment proceeding and from the record of encroachment proceeding it reveals that the suit plot no. 945 and 946 were under encroachment of one Suresh Chandra Mishra who having appeared hand contested the proceeding basing his claim upon purchase from the original owner and in that proceeding, the plaintiff’s father who had been alleged to have encroached land under plot no. 940 and 943 had denied the factum of encroachment of land under plot no. 940 and 973 stating that those had been purchased by him under sale-deed. Interestingly enough in the said counter filed by the plaintiff’s father, there remains averments that-if the revenue authority so find that the plot no. 940 and 973 were excess in the area then the area actually purchased, the same maybe settled since there has been acquisition of right over the same by virtue of long possession. Interestingly enough in the said counter filed by the plaintiff’s father, there remains averments that-if the revenue authority so find that the plot no. 940 and 973 were excess in the area then the area actually purchased, the same maybe settled since there has been acquisition of right over the same by virtue of long possession. This rather goes to show that he was then also not sure as to if the possession was to the extent of his purchased land or more. In the suit based upon those very sale-deed, the plaintiff’s claim is that his father had purchased land under plot no. 945 and 946 and that they have been in possession, whereas the plaintiff has categorically in his plaint at para-6 pleaded that he has no claim over the land under plot no. 940 and 973. In such state of affair, the lower appellate Court having held that the plaintiff is not sure of his purchased land and has claimed a relief in respect of an encroachment proceeding which does not concern with the suit land, the said conclusion is found just and proper. Moreover, in the encroachment case, the plaintiff though had advanced his claim over the plot no. 940 and 973, in the suit he has abandoned the same and now he advances his claim over plot no. 945 and 946. The lower appellate Court has taken a view that if the plot no. 945 and 946 are the purchased plot of the plaintiff then how it could be that he has only advanced his claim in the suit in respect of some portions of land from out of those two plots as stated in the schedule of the plaint leaving the remaining portions which stands as a circumstance to throw enough doubt upon the very claim made in the suit. It has hen next gone to address the submission as regards the claim of long possession of the suit by the plaintiff since the time of his father. Upon thread bare discussion of evidence, the lower appellate Court has negated the same. It also appears that the lower appellate Court assigning very good reasons which stand to judicial scrutiny has set at right the said findings of the trial Court having held the same as contrary to the evidence on record. Upon thread bare discussion of evidence, the lower appellate Court has negated the same. It also appears that the lower appellate Court assigning very good reasons which stand to judicial scrutiny has set at right the said findings of the trial Court having held the same as contrary to the evidence on record. In view of the settled position of law, the final Court of fact when has arrived at a conclusion on the factual aspect of the case having made proper appreciation of evidence on record in the backdrop of the pleadings and when those are found to be sufficiently backed by justifiable reasons as discussed above, this Court finds the submission of the learned counsel for the appellant as not acceptable that there remains any substantial question of law so as to be certified for admission. 8.Resultantly, the appeal stands dismissed and in the facts and circumstances without cost. Appeal dismissed.