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2016 DIGILAW 863 (ORI)

Md. Muslim Answary @ Ansari v. Md. Danish

2016-09-23

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. 1. This is a plaintiff's appeal against a confirming decision. 2. The subject matter of the suit pertains to A0.005 dec. of land out of Ac.0.20 dec. appertaining to khata no. 131/51 and plot no. 148/1339. 3. Case of the plaintiff is that he is a dress designer and tailor. He had purchased Ac.0.20 dec. of land at Bhaluka from late Ajijur Rehman in the year 1986. Possession of the land was delivered to him. Thereafter he constructed a house over the same and left 10 meters of land in the front as the GRIDCO Tower went over his land. In Mutation Case No. 852 of 1996, the land was mutated in his name. It is further stated that the defendant has constructed a house to the extreme east of his land. The defendant also purchased some land to the south of his house. The defendant has not left any space to the east of his house, for which he developed an ill intention to grab 4ft. of land, which was left for his beneficial use. During his absence, the defendant opened a door towards his house and demolished a portion of his compound wall on 2.12.2005. It is further stated that he is in possession of the suit land from the year 1986 uninterruptedly. The defendant has no semblance of right, title and interest over the same. With this factual scenario, the plaintiff instituted the suit for declaration of right, title and interest over the suit land, confirmation of possession and permanent injunction restraining the defendant from entering into the suit land. 4. Pursuant to issuance of summons, the defendant entered appearance and filed written statement denying the assertions made in the plaint. Case of the defendant is that he had purchased an area of A0.350 dec. of land appertaining to hal plot no. 148 and hal khata no. 128 out of a total area of Ac.2.05 dec. from Md.Mafazul Rahaman and Md.Atiqur Rahman by means of a registered sale deed no. 1016 dated 3.5.1993. Existence of 5’ wide foot path between his area and the plaintiff has been shown in the sale deed and sketch map. The plaintiff claims right on the foot path, which is the land of the vendor and has not been sold to anybody. The space has been left for use of general public. 5. 1016 dated 3.5.1993. Existence of 5’ wide foot path between his area and the plaintiff has been shown in the sale deed and sketch map. The plaintiff claims right on the foot path, which is the land of the vendor and has not been sold to anybody. The space has been left for use of general public. 5. On the pleadings of the parties, the learned trial court struck ten issues. The plaintiff had examined three witnesses including himself and on his behalf, ten documents were exhibited. The defendant was examined himself as D.W.1 and on his behalf, one document had been exhibited. Analyzing the evidence on record and pleadings, the learned trial court came to hold that the suit land is a part of plot no. 148 and same is between plot no. 148/1339 and plot no. 148/1336. Held so, the learned trial court dismissed the suit. Thereafter the plaintiff unsuccessfully challenged the judgment and decree passed by the learned trial court before the learned District Judge, Keonjhar in R.F.A. No. 46 of 2007, which was eventually dismissed. 6. Heard Mr. S.K. Nayak-2, learned Advocate for the appellant. 7. The learned appellate court came to hold that the schedule given in the registered sale deed no. 1016 dated 3.5.1993 shows that there is a foot path of 22’ x 250 kadies between the land of the plaintiff and the land of the defendant. The plaintiff had purchased A0.20 dec. of the land by means of a registered sale deed no. 45 dated 27.1.1996. No eastern or western boundary land has been given in the sale deed dated 27.1.1996. The registered sale deed no. 1016 dated 3.5.1993 in favour of defendant was executed much prior to execution of the registered sale deed of the plaintiff. No reason had been assigned as to why the eastern and western boundary of A0.20 dec. of the land was not given in the sale deed. The defendant constructed the house to the extreme east of his land and did not leave any space at the east of his house. He has not trespassed to the land of the plaintiff. The sketch map of the registered sale deed of the defendant shows that the original owners of plot no. 128 had left a passage between plot nos. 148/1339, the land of the plaintiff and plot no. 148 of 1356, the land of the defendant. He has not trespassed to the land of the plaintiff. The sketch map of the registered sale deed of the defendant shows that the original owners of plot no. 128 had left a passage between plot nos. 148/1339, the land of the plaintiff and plot no. 148 of 1356, the land of the defendant. The learned appellate court further held that the plaintiff had failed to prove that the foot-path or the passage was covered by the registered sale deed no. 45/96 in his favour. There is no evidence on record that the path way had been sold to anybody. He failed to establish that after exclusion of that path way, the total area of the plot no. 148/1339 fell short of the area of A0.20 dec. purchased by him under registered sale deed no. 45/96. It further held that the western boundary of the purchased land of the plaintiff has not been mentioned in the registered sale deed no. 45/96, plot no. 148/1339 has not been demarcated during the trial and the owners of plot no. 148 have not been examined and as such the plaintiff failed to establish that the suit land was a part of his purchased land i.e., plot no. 148/1339 appertaining to khata no. 131/51. The suit land is an area between plot nos. 148/1339 and 148/1356. The sale deed no. 45/1996 in favour of the plaintiff, vide Ext.9, does not accompany any map. Held so, the learned appellate court concurred with the finding of the learned trial court. 8. These are the essential findings of fact, which had been arrived at by the courts below on appreciation of the evidence on record as well as the pleadings. There is no perversity or illegality in the same. 9. The appeal does not involve any substantial question of law and, accordingly, the same is dismissed.