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2016 DIGILAW 185 (ORI)

Chintamani Mohapatra v. Sanjukta Das

2016-03-03

D.DASH

body2016
JUDGMENT 1.This appeal has been filed against an order dated 19.7.2007 passed by the learned 2nd Addl. District Judge, Bhubaneswar in RFA No. 7/48 of 2002 which had been directed against the judgment and decree passed by the learned Civil Judge (Jr. Divn.), Bhubaneswar in T.S. No. 345/177 of 1986. The trial Court had decreed the suit filed by the predecessor-in-interest of the present appellants namely, Smt. Ashamanjari Mohapatra as the plaintiff declaring their right, title and interest over the suit land and directing the respondent no. 1 (defendant no. 1) to deliver the vacant possession of the suit land to them within a period of two months giving liberty to the plaintiffs-appellant incase of failure on the part of the respondent no. 1 (defendant no. 1) to take the same through process of law. The lower appellate Court has allowed the appeal by setting aside the judgment and decree passed by the trial Court. It has then remanded the suit to the Court below for fresh disposal in accordance with law directing the Court below to appoint survey knowing commissioner at the cost of the plaintiff-appellants for measurement of the entire land under Sabik plot no. 455 in ascertaining the actual area of the land falling in the share of Sundari and for demarcation of the land measuring Ac. 0.072 decimals sold by Sundari to Natabar, Pramod and plaintiff-appellants and also to find out whether the disputed plot is within the purchased land of the plaintiff-appellants or within the purchased land of defendant no. 1 (respondent no.1). In addition to that, the trial Court has also been directed to frame an additional issue on the alternative the case set up by the defendant no. 1(respondent no.1) as regards perfection of the title over the suit land by adverse possession and answer the same after providing opportunity to the parties to lead evidence and hearing them afresh. 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 Court below. 3.Plaintiffs’ case is that land measuring Ac. 0.460 decimals under Sabik Plot No. 455 as per the record of the settlement of the year 1962 belonged to Sundari Dei and Gandharba Swain. In an amicable partition between them, the eastern portion measuring Ac. 3.Plaintiffs’ case is that land measuring Ac. 0.460 decimals under Sabik Plot No. 455 as per the record of the settlement of the year 1962 belonged to Sundari Dei and Gandharba Swain. In an amicable partition between them, the eastern portion measuring Ac. 0.230 decimals is said to have gone in the share of Sundari whereas the rest half on the western side is said to have been fallen to the ssare of Gandharba. It is further stated that there was a pucca boundary wall separating the above land as allotted to them in their respective shares. It is next stated that for legal necessity Sundari had sold Ac. 0.072 decimals to Natabar Mohanty and that was adjoining the boundary wall, Ac. 0.072 decimals to Promod Kumar Mohatny and A 0.072 dec. to Ashamanjari, the original plaintiff to the further east of Pramod Kumar Mohanty. The sale deeds evidencing the above transactions are said to have been executed on 12.11.1963 and registered. After sale of land as above, balance land of Ac. 0.014decimals remained with Sundari. It is further stated that Promod subsequently alienated his entire purchased land to one Pratap Chandra Samanta by registered sale deed dated 5.12.75. The vendees are said to have taken possession of their respective purchased land from Sundari being so delivered. The land of the plaintiff was lying vacant as she could not raise any construction in view of paucity of fund. But it is said to have been marked by fixation of boundary pillars on all sides and so demarcated. It was so mutated in the name of the original plaintiff in Mutation Case No. 1910 of 1964-65 being assigned with separate khata No. 580/57 and plot Nos. 455/3012 measuring for an extent of land of Ac. 0.072 decimals in conformity with her purchase. It is alleged that in the year 1983, one Kanchana Dei created trouble in the peaceful possession of land by the plaintiff and that led for initiation of Demarcation Case No. 556 of 1983, during the pendency of which said Kanchan executed a sale deed in favour of defendant no. 1. Thereafter, the plaintiff found defendant no. 1 to be putting a stone boundary wall encroaching her land at the eastern side. However, then it was agreed that they would abide by the demarcation that would be made in the demarcation proceeding. 1. Thereafter, the plaintiff found defendant no. 1 to be putting a stone boundary wall encroaching her land at the eastern side. However, then it was agreed that they would abide by the demarcation that would be made in the demarcation proceeding. Tahasil Amin measured the land and found the encroachment of Ac. 0.023 decimals of land by defendant no. 1 and accordingly submitted the report. However, the defendant no. 1 did not pay any heed to the same and did not remove the said encroachment for which the suit had to be filed claiming the reliefs as aforesaid. During the pendency of the suit, hal settlement operation commenced and in the said operation, land measuring Ac. 0.050 decimals from out of the plaintiffs total purchased land of Ac. 00.072 decimals was recorded in her name in view of her physical possession and the encroached portion from out of her purchased land was illegally included in hal plot No. 780 in the name of defendant no. 1. 4.The defendant no. 1’s case is that the land under Sabik Plot NO. 455 was Ac. 0.560 decimals and share of Smt. Sundari was measuring Ac. 00.280 decimals. She having alienated the land to the extent of Ac. 0.216 decimals by three sale deeds, the balance land of Ac. 0.064 decimals remained. Out of the same, she is said to have sold Ac. 0.020 decimals to Srinibas Mangraj and Ac. 0.044 decimals to one Kanchanbala Jena by two registered sale deeds dated 2.8.66 and 1.5.70 respectively. Srinibash Mangaraj in turn is said to have sold his purchased land to Kanchanabala by registered sale deed dated 13.7.73 and said Kanchanabala thereafter sold the land measuring Ac. 0.054 decimals out of her total purchased land of Ac. 0.064 decimals to defendant no. 1 by registered sale deed dated 12.10.1983. 5.It is next stated that Natabar and Pratap are having excess land in their possession measuring Ac. 0.022 decimals and Ac. 0.018 decimals respectively and that is said to be the land of the plaintiffs which they have encroached. Defendant no. 1 asserts to be in possession of land measuring Ac. 0.054 decimals without having encroached the plaintiffs land. 6.The trial Court on such rival pleadings framed seven issues. 0.022 decimals and Ac. 0.018 decimals respectively and that is said to be the land of the plaintiffs which they have encroached. Defendant no. 1 asserts to be in possession of land measuring Ac. 0.054 decimals without having encroached the plaintiffs land. 6.The trial Court on such rival pleadings framed seven issues. Upon examination of evidence and their assessment, the following important facts emanating from evidence have been taken note of leading to necessary conclusions : - (i) Total area of Sabik Plot No. 455 is A 0.460 dec. as evident from the recitals of sale deed under Ext. Q and R as per the admission of vendor, Sundari Dei and also evident from the Amin Report (Ext.6), A.S.O. enquiry Report (Ext. 7). Exts. 6 and 7 were submitted before the Settlement Revision No. 931/89 filed by the plaintiff challenging the wrong recording of suit land in favour of defendant no.1; (ii) Admittedly the vendor, Sundari Dei had executed 3 sale deeds for total area of Ac. 0.216 dec. and balance Ac. 0.14 dec. was lying vacant with her. Subsequently the vendor, Sundari Dei executed sale deeds by mentioning wrong Sabik area as Ac. 0.560 dec. Therefore, RSD dt. 12.10.83 (Ext.V) executed in favour of defendant/Respondent No. 1 beyond balance are of A 0.14 dec. does not confer any title; (iii) Amin Report (Ext. 4) related to Demarcation case No. 556/83 filed by the original plaintiff reveals that the plaintiffs are in possession of A 0.049 dec. and balance land out of her purchased land of A0.072 dec. is under encroachment of the defendant/Respondent No. 1; (iv) The plaintiffs have right, title, interest over the suit land which is under encroachment of the defendant No. 1 and he is entitled to recovery of possession of the suit land from defendant No. 1; (v) It cannot be said that absence of measurement by survey knowing Civil Court Commissioner has affected the plaintiffs’ case in view of Hal Settlement ROR in respect of A 0.050 dec. issued in favour of the plaintiffs, Ext. 8 (order of Settlement Commissioner in Revision No. 931/89) and unchallenged demarcation Report, Ext. 4 establishing encroachment of A 0.023 dec. of land by defendant/Respondent No. 1; (vi) Suit land has been properly described in Schedule-B as per provision under Order 7 Rule 3 CPC; and (vii) Suit is not bad for non-joinder of parties. 8 (order of Settlement Commissioner in Revision No. 931/89) and unchallenged demarcation Report, Ext. 4 establishing encroachment of A 0.023 dec. of land by defendant/Respondent No. 1; (vi) Suit land has been properly described in Schedule-B as per provision under Order 7 Rule 3 CPC; and (vii) Suit is not bad for non-joinder of parties. In view of above, the suit having thus been decreed granting reliefs to the plaintiffs as prayed for, defendant no. 1 being aggrieved by the same filed the appeal under Section 96 of the CPC. 7.The lower appellate Court has allowed the appeal and remanded the suit to the trial Curt with necessary observation and direction as already stated for its disposal afresh in accordance with the law. 8. Learned counsel for the appellants submits that such order of remand is illegal, arbitrary and outcome of total non-application of mind. According to her, there is no necessity for deputing private survey knowing commissioner for measurement of the land, in the facts and circumstances and in view of the evidence already on record. It is also her contention that when the appellants have sought for declaration of their title over the suit land being their purchased land and as that is not disputed by defendant No. 1, the alternative case of acquisition of title by adverse possession has no leg to stand and in view of that the lower appellate Court ought not to have directed framing an additional evidence on that score so as to be answered by the trial Court. 9.The learned counsel for the respondent no. 1 submits that there is no infirmity in the order of the lower appellate Court as regards the direction in deputation of private survey knowing commissioner to ascertain the aspects in the field with reference to the settlement record as pointed out, as the same would materially effect the fate of the suit. It is also his contention that in view of the specific pleading in the written statement by the defendant no. 1 as regards the acquisition of title over the suit land by the adverse possession, the lower appellate Court did commit no mistake in directing the trial Court to frame an additional issue on that score and to answer the same recording evidence from both sides and after hearing. 1 as regards the acquisition of title over the suit land by the adverse possession, the lower appellate Court did commit no mistake in directing the trial Court to frame an additional issue on that score and to answer the same recording evidence from both sides and after hearing. 10.Admittedly, in the present case as per the direction of the Commissioner, Settlement to the Settlement Officer, Amin has measured the land of the parties and his field enquiry report as per the order in Settlement Revision No. 931/89 has been proved as Exts. 6 and 7. The said revision was filed by the plaintiffs challenging the very wrong recording of land of Ac. 0.23 dec. in favour of the defendant no. 1 reducing the extent of her purchased land and so recording under Ext. 5 in favour of the plaintiffs. The revisional order Ext. 8 stands in favour of the plaintiffs and it has been directed for enhancement of area from Ac. 0.050 dec. to Ac. 0.072 dec. in that very Hal Plot No. 781 as also for consequential reduction of the area under Hal Plot No. 780 from Ac. 0.054 to Ac. 0.032 dec. In this connection P.W. 3 having been examined, his evidence has been recorded at length. He has stated to have measured the land under Sabik Plot No. 455 at the instance of the common vendor of the parties and to have found its area to be Ac. 0.460 decimals. According to his evidence, eastern half of the plot is divided by a boundary wall and other half of the land lying vacant which was measuring Ac. 0.23 decimals. His evidence is also on the score that he made four plots, there measuring Ac. 0.072 decimals each and fourth plot remained with an area of Ac. 0.014 decimals. The sale deed Ext. 1 in favour of the plaintiffs describes the total area of Sabik Plot No. 455 as Ac. 0.460 decimals. the same is also evident from the recitals under Exts. Q and R. The report of the Amin in demarcation case has also proved and marked Ext. 4 which shows the possession of the plaintiffs in respect of the land measuring Ac. 0.049 decimals and the balance out of the plaintiff’s purchased land to be resting with the defendant no. 1. Q and R. The report of the Amin in demarcation case has also proved and marked Ext. 4 which shows the possession of the plaintiffs in respect of the land measuring Ac. 0.049 decimals and the balance out of the plaintiff’s purchased land to be resting with the defendant no. 1. 11.On a careful reading being given to the judgment of the trial Court, it is seen that with the existence evidence on record it has arrived at the satisfaction as regards the proof of the case of the plaintiffs so far as the encroachment of portion of the purchased land is concerned. In this connection, lengthy discussion has been made touching the evidence on record and the trial Court as it appears at no point of time has faced any difficulty in deciding the crucial issue without the aid and assistance of the evidence of survey knowing commissioner. 12. In view of above, the lower appellate Court at first without having made any independent endeavour ingoing to answer those crucial issue nos. 6 and 7 on the basis of existence evidence on record, in side by side examining the appreciation of the evidence of the trial Court in that direction to be proper or not and finally taking a view with regard to sustainability of the said finding recorded by the trial Court, ought not to have gone to say that the trial Court should have given effect to the order dated 21.9.95 in holding that for the same the decision of the trial Court is liable to be set aside when by earlier order dated 13.7.2006 it had refused the said prayer. The above approach is clearly in opposition to the settled position that the appellate Court is required first to make endevour to answer the disputed findings and when in spite of that it is not in a position to come to the conclusion either way, it may consider to remand the suit for fresh trial. This effort is wholly lacking in this cse by the lower appellate Court. Therefore, the view taken by the lower appellate Court as aforesaid is untenable. This effort is wholly lacking in this cse by the lower appellate Court. Therefore, the view taken by the lower appellate Court as aforesaid is untenable. 13.Now coming to the question of framing of additional issue as regards acquisition of title by adverse possession over the suit land by defendant No. 1, it is seen that defendant No. 1 has specifically denied his possession over the suit land in the written statement as also in evidence in assigning that he has not encroached any land form out of the purchased land on the plaintiffs. Moreover, in this case parties have led evidence at length with regard to their respective possession and in so far as the suit land is concerned. The settled position of law is that non-framing of a specific issue will not be sufficient to set aside a judgment if the parties have led evidence and gone into trial knowing the real nature of the dispute involved. The lower appellate Court should have first considered as to whether the evidence on record already covers the said issue so as to land itself in a position to come to a conclusion on that aspect. Such endeavour appears to have not been made that notwithstanding non-framing of the specific issue, the parties being aware of the question involved and having led evidence whether any prejudiced in going to be caused. Thus there is total lack of any attempt to find out the answer to that by the lower appellate Court. 14.For the aforesaid discussion and reasons, this Court concludes that the order of the lower appellate Court suffers from the vice non-application of judicial mind and thus the remand of the suit to the trial Court on the above noted grounds is vulnerable and as such liable to be set aside. Accordingly, the order of the lower appellate Court is set aside and the appeal is remanded to the lower appellate Court for fresh disposal after hearing the parties keeping in view the observations made hereinbefore and in accordance with law. However, it is made clear that such remand of the appeal to the lower appellate Court for fresh disposal should not be taken to be expression of any opinion on these aspects and so as to influence the lower appellate Court in discharging its duty as per law in disposal of the appeal afresh. 15.The appeal is thus allowed. However, it is made clear that such remand of the appeal to the lower appellate Court for fresh disposal should not be taken to be expression of any opinion on these aspects and so as to influence the lower appellate Court in discharging its duty as per law in disposal of the appeal afresh. 15.The appeal is thus allowed. There will be no order as to costs. The parties through their counsels are directed to appear in the lower appellate Court on 21.03.2016 to receive further instruction in the matter so that the appellate Court would fix an appropriate date for hearing thereafter for its disposal within a period of three months computed from the above date fixed for appearance of the parties. Appeal allowed.