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2016 DIGILAW 850 (ORI)

Sri Purna Chandra Nayak v. Ramamani Behera

2016-09-22

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. 1. Defendant No. 1 is the appellant against an affirming judgment in a suit for declaration of title and permanent injunction. 2. It is apt to state here that during pendency of the suit, the original plaintiff, namely, Fulamani Prusty, died and her legal representative, respondent No. 1 herein, has been brought on record. The case of the plaintiff is that she was the owner in possession of an area Ac.0.04 dec. of land. During the current settlement operation, the defendant No. 1 filed objection case bearing No. 480/76/146/164 before the Settlement Authority to record the suit land in his name and the same was rejected vide order dated 4.8.76. Finally the R.O.R. was published in the name of the original plaintiff. The defendant did not challenge the aforesaid order passed in objection case before any higher forum. She used to pay rent and obtained rent receipts. The homestead land of the defendant situates to the east of the suit land. Accordingly, the defendant requested the plaintiff to use some portion of the suit land for his ingress and outgress to the public road. She accorded permission. The defendant used the same. The defendant tried to close the road by putting a pucca wall over the passage and claimed title over the same. A village Panchayat was convened on 15.4.1996 where the defendant admitted the ownership of the plaintiff but refused to leave the possession of the suit land. 3. Pursuant to issuance of summons, the defendant No. 1 entered appearance and filed written statement denying the assertions made in the plaint. The specific case of the defendant is that plaintiff is the owner of sabik plot No. 487, area Ac.0.10 decimals. That plot has been converted to three plots, such as, 487/914 area Ac.0.02 decimals, 487/911 area Ac.0.04 decimals and 487 area Ac.0.04 decimals in 1947-48 settlement. Plot No. 486, area Ac.0.31 decimals of the defendant situate to the east of plot No. 487. The eastern boundary land of the plaintiff’s plot No. 487 and the western boundary land of defendant’s land, i.e., plot No. 486 was a straight one which adjoins the Govt. road running on the north of both the plots of the plaintiff and defendant. The eastern boundary land of the plaintiff’s plot No. 487 and the western boundary land of defendant’s land, i.e., plot No. 486 was a straight one which adjoins the Govt. road running on the north of both the plots of the plaintiff and defendant. There is a passage of 30’ in length and 10’ in width covering some portion of area from plot No. 487 on the east since the time of the grandfather of the defendant. The same is used as his ingress and egress. The bullock carts and other vehicle used to pass through the same. He has acquired prescriptive right of easement over the same. It is further stated that in the settlement plot No. 487/914, 487/911 and 487 have been converted to hal plot No. 561, area Ac.0.04 decimals, plot No. 563, area Ac.0.04 decimals and plot No. 560, area Ac.0.04 decimals. The location of hal plot nos.561, 563 and 560 have been changed in the map, so also the location of plot No. 561 has been shown inside plot No. 562 which belongs to the defendant. As a result, the land of the defendant has been reduced to Ac.0.27.500 Bargakadi in place of Ac.0.31 decimals. The aforesaid mistake was detected by the defendant when he compared the saibk map with the hal map. 4. Stemming on the pleadings of the parties, learned trial court struck five issues, which are follows:- “(i) Whether the suit is maintainable? (ii) Whether the defendant had filed objection case before Settlement Authority to record the suit land in his name which was rejected? (iii) Whether the defendant has acquired easementary right over the suit land? (iv) Whether the records of current settlement is incorrect? (v) Whether the plaintiff is entitled to get any relief or reliefs prayed for? 5. To prove the case, the plaintiff had examined three witnesses and on her behalf 10 documents had been exhibited. The defendant had examined four witnesses and on his behalf 21 documents had been exhibited. The suit was decreed. Assailing the judgment and decree passed by the learned trial court, the defendant No. 1 filed appeal in the court of the learned District Judge, Mayurbhanj, which was subsequently transferred to the court of the learned Additional District Judge, Mayurbhanj, Baripada which was eventually dismissed. 6. The suit was decreed. Assailing the judgment and decree passed by the learned trial court, the defendant No. 1 filed appeal in the court of the learned District Judge, Mayurbhanj, which was subsequently transferred to the court of the learned Additional District Judge, Mayurbhanj, Baripada which was eventually dismissed. 6. Learned counsel for the appellant submits that the village, in which the suit schedule land falls, came under the purview of consolidation operation. The Civil Court lacks jurisdiction to decide the issue. The suit abates. He further submits that the suit land has been used as passage since the time of the grandfather of the defendant No. 1. The defendant has acquired prescriptive title of easement over the same. In the current settlement, plot nos. 487/914, 487/911 and 487 have been converted to hal plot No. 561 area Ac.0.04 decimals, plot No. 563 area Ac.0.04 decimals and plot No. 560 area Ac.0.04 decimals. The location of hal plot nos. 561, 563 and 560 have been changed in the map, so also the location of plot No. 561 has been shown inside plot No. 562, which belongs to the defendant, as a result of which the extent of land of the defendant has been reduced to Ac.0.27.500 bargakadi in place of Ac.0.31 decimals. He further submits that the courts below committed a manifest illegality in not accepting the report of the civil court commissioner. In the absence of any material on record that the plaintiff is the owner of 2 decimals of land, learned courts below committed an illegality in decreeing the suit. He cited the decision of this Court in the case of Gulzar Khan vs. Commissioner of Consolidation and Others, 1993 (I) OLR 194. 7. Section 4 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as “OCH&PFL Act, 1972”) deals with effect of notification. Subsection (4) of Section 4 of the OCH&PFL Act, 1972 is quoted hereunder. 7. Section 4 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as “OCH&PFL Act, 1972”) deals with effect of notification. Subsection (4) of Section 4 of the OCH&PFL Act, 1972 is quoted hereunder. “(4) Every suit and proceedings for declaration of any right or interest in any land situate within the consolidation area in regard to which proceedings could be or ought to be started under this Act, which is pending before any Civil Court, whether of the first instance or appeal reference or revision shall, on an order being passed in that behalf by the Court before which such suit or proceeding is pending stand abated.” 8. No application was filed by any of the party to the suit in the court below for abatement of the suit. No order was passed. Even in appeal, no objection was filed. 9. Reliance placed on the decision of this Court in the case of Gulzar Khan (supra) is totally misplaced. In Gulzar Khan (supra), the question arose before the Full Bench as to whether the power conferred by Section 37 of the OCH&PFL Act, 1972 would be available for exercise after a notification has been issued as contemplated by Section 41(1) of the Act on the subject that consolidation operations have been closed in the unit, the result of which is that the village or villages forming part of the unit cease to be under consolidation operations. The said decision is distinguishable. 10. Learned lower appellate court on a threadbare analysis of the evidence on record, both oral and documentary, and pleadings came to hold that two objection cases bearing Objection Case Nos. 1154 of 2000 and 1207 of 2000 had been filed by the plaintiff before the Consolidation Authority for correction of map and enhancement of area. The same was allowed. The objection case filed by the defendant for the self-same land has also been dismissed. 11. There is no perversity or illegality in the finding of the courts below. The second appeal does not involve any substantial question of law. Accordingly, the same is dismissed.