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2016 DIGILAW 487 (ORI)

Sunakar Sahu v. State of Orissa

2016-07-04

D.DASH

body2016
JUDGMENT : This appeal has been directed against the judgment and decree passed by the learned Additional District Judge, Kendrapara in R.F.A. No. 23 of 2006 confirming the judgment and decree passed by the learned Civil Judge (Jr. Division), Kendrapara in Title Suit No. 117 of 1997 dismissing the suit filed by the appellants as the plaintiffs for declaration of their easementary right over the suit land with the further prayer for issuance of permanent injunction against respondent-defendants. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The subject matter of the suit is a strip of land having 20 links at length and 15 links of breadth touching the side of the public road. In the consolidation operation, the classification of the land has been recorded as Gharabari. The plaintiffs stated that their Sthitiban homestead land is situated to the south of the suit land under plot no. 997 measuring Ac. 0.16 decimals corresponding to Sabik plot no. 652 and 653. It is specifically stated that for the plaintiffs go to their own homestead from the public road, the strip of land which is the suit land is the only path available for having the access as such. Thus they have the right of access over the same being a road side land from all points of their homestead land. The plaintiffs, further allege that on 22.09.2003, the defendant no. 3 and 4 taking advantage of wrong recording of the suit land under Gharabari Kisam, illegally placed a cabin obstructing such right of access of the plaintiffs to the road. It is also stated that the plaintiffs have been using that strip of land as the path way openly, peacefully, uninterruptedly to the knowledge of the public at large for more than the statutory period and thereby have also acquired right of easement by prescription over it. The plaintiffs have averred when they came to know about the wrong recording of the classification in the consolidation record of right, they requested the authorities for necessary correction. However, request was not paid any heed to and rather the authorities proceeded with a move to settle the suit in favour of the defendant no. 3 and 4 by way of lease. So, the plaintiffs filed the suit. However, request was not paid any heed to and rather the authorities proceeded with a move to settle the suit in favour of the defendant no. 3 and 4 by way of lease. So, the plaintiffs filed the suit. The defendant no. 1 and 2 being the State represented by Collector of the District and Tahasildar respectively in their written statement denied the right of easement of the plaintiff over the suit land as described in the plaint. It is stated that the suit land is in khas possession of the State and it was never possessed or used by the plaintiffs in any manner. The defendant no. 3 and 4 state that the land originally belong to Burdhawan Estate and as such it was lying fallow being recorded under Anabadi Khata. In the year 1955, the defendant no. 3 claims to have approached the employees of the ex-intermediary to reclaim the suit land and for that reason a Hatapatta was granted and salami being then paid, the land was accordingly possessed. But after vesting of the Estate with the State free from all encumbrances in the year 1952, as no Ekpadia had been issued in their favour, the State refused to accept the rent. It is further averred that the residential house of defendant no. 3 which was standing over the suit land had collapsed in the Cyclone of the year 1967 and as such all those documents were destroyed. This defendant no. 3 admits to have installed a cabin over the suit land in the year 1975 and further states to have been running a bettle shop in the said cabin and earning his livelihood. Said possession of the defendant no. 3 is said to have been acknowledged by the State by way of initiation of the encroachment proceedings. 4. With the above rival pleadings, the trial court framed eight issues. In view of the claim of the plaintiffs that they have the easementary right of access over the suit, the trial court having gone to examine the evidence and upon their assessment has recorded the finding against the plaintiffs while of course at the same time saying the land to be belonging to the State. Practically, for the above finding, the plaintiff has been non-suited. Practically, for the above finding, the plaintiff has been non-suited. The lower appellate court being moved by the unsuccessful plaintiffs, as is seen from the judgment has taken up the exercise of critical examination of evidence on record in finding out as to whether the plaintiffs claim of right of easement over the suit land has been established through clear, cogent and acceptable evidence for grant of the reliefs as prayed for. The lower appellate court at the end after churning the evidence has also arrived at the same conclusion as that of the trial court. The appeal having accordingly been dismissed, the plaintiffs now challenge the concurrent finding of the courts below negating his claim and entitlement to the reliefs as prayed for by filing this second appeal under section 100 of the Code of Civil Procedure. 5. This Court at the initial stage after hearing the learning counsel for the appellant on 20.01.2016 had issued notice to the respondents for hearing of this appeal of the year 2008 on admission finding that it also can be taken up for final disposal in case of admission which would save time by early disposal. The defendant no. 3 and 4 have not entered appearance despite notice. 6. Learned counsel for the appellants submits that the suit land being a piece of road side land situated in between the homestead land of the plaintiff and public road even though the courts below have found that the plaintiffs have no right of easement of way over the property yet they should have declared that the plaintiffs have got the natural right to approach the public road from their homestead land by passing over the said strip of the land which is the suit land and therefore, the same according to him is the substantial question of law which clearly surfaces in the case for its certification for the purpose of admission of the appeal. 7. Learned Additional Government Advocate appearing on behalf of the respondent no. 1 and 2 submits in favour of concurrent finding of fact recorded by the courts below. According to him, here is a case, where the plaintiffs have designed the suit in such a manner in claiming the relief only to take un-due advantage of the situation as far as their homestead land is concerned. 1 and 2 submits in favour of concurrent finding of fact recorded by the courts below. According to him, here is a case, where the plaintiffs have designed the suit in such a manner in claiming the relief only to take un-due advantage of the situation as far as their homestead land is concerned. According to him, the plaintiffs have been in enjoyment of the natural right over a large chunk of land covering maximum frontage of their homestead land and there remains no such obstruction in so far as that large extent of frontage which adjoin their house to the said road side land. They having never used the strip of land which is the suit land for coming from the road to their land, or going over to the road from their land, it has to be taken that they have totally abandoned such natural right, if any, over the suit land since long and having direct access to a large extent of frontage by letting out those rooms to tenants now want to take further advantage saying that they have also the natural right over this strip of land which is the suit land. Therefore, he urges that the appeal does not merit admission. 7. Admittedly the suit land belongs to the Government. The plaintiffs claim that it is their only path for having the access from the public road to their homestead land. This strip of land measures only 20 links X 15 links adjoining the public road under plot no. 988 on its north to the south of the said land under plot no. 652. The plaintiffs are the owners of the homestead land under sabik plot no. 652 and 653 under Hal plot no. 997. The suit plot no. 995 adjoins the public road on plot no. 998 in its north and also adjoins of the three other plots which are plot nos. 994, 996 and Gochar land and plot no. 997 owned by the plaintiffs. The plaintiffs homestead land is assigned with plot no. 997 and that itself adjoins the village road on its north, covering an extent of 60 per cent of the frontage. To the western side of the plaintiffs land, there adjoins the Gochar land. The suit land is situated in a corner of the plaintiffs land. 997 owned by the plaintiffs. The plaintiffs homestead land is assigned with plot no. 997 and that itself adjoins the village road on its north, covering an extent of 60 per cent of the frontage. To the western side of the plaintiffs land, there adjoins the Gochar land. The suit land is situated in a corner of the plaintiffs land. At the cost of the repeatation, it may be stated that it measures only 20 links X 15 links. So, here it is not a case that the plaintiffs have the only right of access from their homestead land to the public road through this suit land. Major portion of the frontage of their homestead land has free access to the public road, when the suit passage remains at a corner which appears to be too negligible in comparison to the free frontage that the plaintiffs are having in order to access the public road. In the facts and circumstances of this case as also from the evidence let in by the plaintiffs themselves, their plea that the suit land is the only path for them as access to their homestead land is nothing but falsehood. It is the evidence of the plaintiff that he has constructed four shop rooms covering major portion of the frontage of the homestead land and those have been let out to tenants which was earlier being used by the plaintiffs. The user of those shop rooms by the tenants is attached with the user of the Government land lying in between the road and homestead land and that has thus to be said to be in enjoyment of the plaintiffs. The user of those shop rooms by the tenants is attached with the user of the Government land lying in between the road and homestead land and that has thus to be said to be in enjoyment of the plaintiffs. In such peculiar fact situation and circumstances of this case even saying for moment that the plaintiffs were having the right of access from each point of the frontage of their homestead land to the public road over the road side land and it was their natural right because of the peculiar situation of their own land vis-à-vis, the public road, they having themselves covered their major frontage by constructing rooms adjoining the road side land in so far as the natural right over the left out negligible portion, it can be well taken that they have abandoned said right unless of course they further establish by evidence to the satisfaction of the court that they after construction of the shop rooms, were continuing to use the suit land to have their access from the public road to their own homestead land at those points. In the instant case such evidence is wholly wanting. Therefore, abandonment of such user and exercise of natural right over the strip of land which is the suit land in view of plaintiffs own conduct and act has to be presumed. In view of the above, this Court even though not in total disagreement with the submission of the learned counsel for the appellants that the courts below having not found that the plaintiffs had no easementary right over the suit land, still had the legal competence and there was no legal impediment on their part to declare that the plaintiffs natural right over the suit land yet for the discussion and reasons and in the facts and circumstances as provided above as regards the abandonment of such right, by the plaintiffs, they having been non-suited and thus been declined as of their entitlement to the reliefs claimed, the same is not found liable to be interfered with. The submission of learned counsel for the appellant thus stands repelled holding that there surfaces no substantial question of law. The appeal, therefore, does not merit admission. 8. Resultantly, the appeal stands dismissed. No order as to cost.