Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 508 (ORI)

Chakrapani Mahakur v. Binod Bihari Dash

2016-07-12

D.DASH

body2016
JUDGMENT : This appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge (F.T.C.), Bargarh in Title Appeal No.17/45 of 2001/03 allowing the appeal preferred by the defendants-respondents being aggrieved by the judgment and decree passed by the learned Civil Judge (Junior Division), Bargarh in Title Suit No.18 of 2000 decreeing the suit filed by the present appellant-plaintiff. 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 suit is for declaration that he is in possession of the suit land and for injunction against the defendants as well as recovery of possession in case he is found so dispossessed during the suit. It is his case that he is the owner in possession of the land under M.S. Khata Nos.45 and 46 situated at village-Brahmachari. The land belonging to the Irrigation Department is situated by the side of the above land of the plaintiff and he claims to be in possession of the land under major settlement plot nos. 672, 676, 677, 678, 692 and 452 appertaining to M.S. Khata No.1 for 40 years prior to the suit constructing house, garage and having thrashing floor over there. The possession is said to be continuous and without any interference from any quarter and as such reflected in the consolidation land register. It is his further case that Tahasildar, Bargarh had initiated encroachment proceedings in the year 1991 and thereafter which are still subjudice. It is alleged that with the connivance of the Revenue Inspector, Bargarh the defendants have managed to initiate an encroachment case in respect of the suit land in the year 2000 in their name and subsequently finding the opportune moment in the absence of the plaintiff and his lawyer have managed to obtain an order in their favour in the said encroachment case. The order having been appealed against, now it is submitted at the Bar to be pending at the revisional forum after dismissal of the appeal. It is stated that the defendants are having no manner of right, title and interest or possession over the suit land are attempting to dispossess the plaintiff from the suit land. The order having been appealed against, now it is submitted at the Bar to be pending at the revisional forum after dismissal of the appeal. It is stated that the defendants are having no manner of right, title and interest or possession over the suit land are attempting to dispossess the plaintiff from the suit land. It is also averred that the defendants have forcibly constructed a wall over the land under plot no.678 despite the vehement protest of the plaintiff and violating the prohibitory order passed by the Sub-Collector, Bargarh. 4. The defendants coming to contest the suit in their written statement denying the claim of the plaintiff state that their ancestors are the owners of the land under M.S. Plot No.678 corresponding to a portion of the land under H.S. Plot No.389 which in total majors Ac.7.15 dec. and stood recorded as such. It is stated that out of the said land the State in the Department of Irrigation acquired Ac.2.97 dec. for construction of canal. So the rest area of the land under H.S. Plot No.389 remained with the defendants and they have been using the same as their thrashing floor covering an area of 11 dec. bounded by pucca wall by fixing iron gates on the western side. It is further stated that in the major settlement for some reason or other the suit land has been recorded in favour of the Irrigation Department though it was their Rayati land. In view of such wrong recording, the defendants being in possession of the said area of land, the Tahasildar, Bargarh had initiated Encroachment Case No.150 of 2000 against them. This land is said to have fallen in the share of the father of the defendants in an amicable arrangement with his other co-sharers. They deny the plaintiff’s ownership over the suit land and assert possession keeping within their boundary. 5. With the above rival pleadings, the trial court framed six issues and very rightly has taken up issue no.2 on the factum of possession of the suit land as asserted by the plaintiffs as well as the defendants unto themselves. Upon analysis of evidence both oral and documentary, it has answered that issue in favour of the plaintiff and against the defendants. Upon analysis of evidence both oral and documentary, it has answered that issue in favour of the plaintiff and against the defendants. The next issue as regards the maintainability of the suit in view of the bar under section 16 of the Orissa Prevention of Land Encroachment Act, the answer has been in favour of the plaintiff. The other technical issues such as the undervaluation of the suit, non-joinder of necessary party, lack of cause of action have all been answered in favour of the plaintiff. Concerning the entitlement of the plaintiff to the relief of injunction, the same has been recorded in favour of the plaintiff basing upon the findings on issues as afore-stated. Thus, the suit finally stood decreed injuncting the defendants from going over the suit land and from interfering with the possession of the plaintiff over the same. 6. Being aggrieved by the aforesaid judgment and decree of the trial court, the defendants carried the appeal under section 96 of the Code of Civil Procedure which came to be heard by the learned Additional District Judge (F.T.C.), Bargarh. In view of the challenge to the findings recorded by the trial court, the lower appellate court very rightly at the beginning has directed the attention to judge the sustainability of the finding rendered by the trial court on the very factum of possession of the suit land as claimed by the plaintiff as also by the defendants. In that exercise, having a critical analysis of evidence both oral and documentary, the finding of possession of the suit land in favour of the plaintiff as recorded by the trial court has been held to be unsustainable. The lower appellate court side-by-side has also recorded the finding that the possession of the suit land is not with the defendants. In that exercise, having a critical analysis of evidence both oral and documentary, the finding of possession of the suit land in favour of the plaintiff as recorded by the trial court has been held to be unsustainable. The lower appellate court side-by-side has also recorded the finding that the possession of the suit land is not with the defendants. Since the plaintiff has not been found to be in possession of the suit land as asserted despite the conclusion that the defendants have also not been able to prove their possession over the suit land as claimed by them, the lower appellate court in view of the settled position of law that the plaintiff in such a suit for the reliefs stated above cannot merely succeed on the weakness of the case of the defendants but has to succeed on his own, has finally gone to set aside the judgment and decree impugned before it which were standing in favour of the plaintiff. Thus, the plaintiff having been finally non-suited by the lower appellate court has filed this appeal under section 100 of the Code of Civil Procedure. 7. The appeal has been admitted on the following substantial question of law: “Whether the lower appellate court’s finding that the plaintiff has miserably failed to prove his possession over the suit property, so as to be entitled to a decree for permanent injunction as prayed for, suffers from the vice of perversity” 8. The settled position of law is that the correctness of the finding of fact recorded by the first appellate court which is the final court of fact can only be questioned if, inter alia, the same is based upon no evidence or is otherwise perverse or that correct legal principles are not applied. The finding of fact is thus liable to be interfered in second appeal in the event the same is based on no evidence and/or while arriving at the finding, the relevant admissible evidence have not been taken into consideration or inadmissible evidence have been taken into consideration. (Refer-Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287 ). 9. Keeping in view the above settled law, this Court is now called upon to answer the substantial question of law as above formulated. (Refer-Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287 ). 9. Keeping in view the above settled law, this Court is now called upon to answer the substantial question of law as above formulated. The lower appellate court has dealt this issue on the competing claims of possession of the suit land with detail narration at paragraph-11 of its judgment. The plaintiff in order to prove the factum of the possession of the suit property by him has examined four witnesses besides proving documents. However, the fact remains that the plaintiff himself having not come to the witness box, his power attorney holder has gone to depose on that score in his place. There is no explanation, save and except projecting the age of the plaintiff to be the disability on his part for the purpose as to why he had to withhold himself from giving evidence. Be that as it may, the power attorney holder having deposed to have the knowledge with regard to the factum of possession of the suit land by the plaintiff, the lower appellate court has gone to analyze said evidence. It has found the evidence to be contradictory mentioning why and also describing how its so. In view of the fact that when the plaintiff asserts to be the exclusive owner in possession over the suit land, on the face of the pleading that it is the land of the Irrigation Department and the evidence of P.W. 1 as tendered being that they are possessing the land of Irrigation Department, the lower appellate court has held all those to be irreconcilable. Records having been prepared during the Major Settlement operation, there has been no noting with regard to plaintiff’s possession in respect of the suit land and no document from the settlement proceeding has also been proved anything going to throw light that at any point of time during the field enquiry, such fact had been so ascertained in finally preparing the record of right in the case published in the year 1970. From all these, the lower appellate court appears to have gone to draw a reasonable inference running against the case of the plaintiff as regards his claim of possession of the suit land. From all these, the lower appellate court appears to have gone to draw a reasonable inference running against the case of the plaintiff as regards his claim of possession of the suit land. While proceeding further to scrutinize the evidence, it has duly taken into consideration, the admission of P.W. 1 that the defendants have put a boundary wall over the suit plot on all sides and further to have fitted a gate to be standing against the plaintiff’s case of possession. In view of all these, the view having been ultimately taken that the P.W. 1 has no clear idea about the suit land, the same is not found to be a flawed conclusion to have been so derived in the absence of any material evidence to lend support. The lower appellate court has further tested the evidence of P.W. 1 that what he has stated as regards boundary of the suit land especially on the eastern side, does not tally with what has been indicated in the plaint. So, the lower appellate court has found the evidence of P.W. 1 to be unacceptable. Similarly evidence of P.W. 1, 3 and 4 have been analyzed in great detail. The evidence of each of these witnesses on thorough scrutiny as well as being considered with the evidence of one another on the particular score of possession of the suit land have ultimately been found to be unsatisfactory for establishment of the factum of possession over the suit land by the plaintiff. In course of hearing, nothing has been pointed out that the scrutiny of evidence as made by the lower appellate court is either erroneous on any count or that any such material evidence has not been taken into account and had that been, the conclusion might have been to the contrary. This Court finds no such perversity in the approach. 10. Above being the state of affairs in the oral evidence, the lower appellate court as is found from the judgment has gone through each of the document proved from the side of the plaintiff and those have been ultimately discarded holding to be throwing no light on the score of the possession of the suit land by the plaintiff in leading to infer that in his favour. The encroachment case which had been initiated against the plaintiff has been brought to an end on the plaintiff’s own showing that he was not in a possession of the suit land which rather stands as a circumstance against the claim of possession by the plaintiff. In a bid to overcome that no effort has been by even examining the concerned Revenue Inspector giving the report for the initiation of proceeding. Thus, such initiation of encroachment case against the plaintiff has been found to be of no help in support of the case of the plaintiff so far his possession over the suit land is concerned. This Court giving a careful reading to the discussion of evidence as made by the lower appellate court finds nothing to say that the conclusion arrived at that the plaintiff had failed to prove the factum of possession of the suit land is the outcome of perverse appreciation of evidence. This provides the answer to the substantial question of law which runs against the plaintiff. Although the evidence let in by the defendants has also been held to be unsatisfactory to prove their possession over the suit land yet the suitor having failed to satisfy the court in establishing the possession over the suit land, the lower appellate court has rightly dismissed the suit in view of the settled law that the plaintiff cannot succeed merely on the failure of the defendants to establish his case, when the facts pleaded by the plaintiff so as to make him entitled to grant of the relief as prayed for are not proved through acceptable evidence as to be held to have been established by preponderance of probability. 11. Resultantly, the appeal stands dismissed. In the facts and circumstances, there would however be no order as to cost.