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2017 DIGILAW 1038 (ORI)

Pravakar Sahoo v. State of Orissa

2017-09-13

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Plaintiffs are the appellants against an affirming judgment. 2. The case of the plaintiffs is that the suit schedule land originally belonged to Ratha Prusty and Bharat Prusty. In an amicable partition, the property fell to the share of Bharat Prusty. He alienated an area of Ac.0.13 dec. appertaining to sabik plot nos.870 and 871 in favour of the plaintiffs by means of a sale deed. Delivery of possession was made to the plaintiffs. Thereafter they had constructed their house over the same and residing with their family members since 1980. The suit land was wrongly recorded in the name of the State in the hal settlement. While the matter stood thus, Encroachment Case No.11 of 1986-87 was initiated against their father. The Tahasildar, Patna, defendant no.2, initiated Encroachment Case No. 2/2000-2001 against the plaintiff no.1 in respect of the suit land. Order of eviction was passed on 8.12.2000. Plaintiff no.1 preferred Encroachment Appeal No.1 of 2001 before the Sub-Collector, Keonjhar, which was dismissed on 30.3.2001. He challenged the same in Encroachment Revision No.6 of 2001 before the Additional District Magistrate, Keonjhar. The revisional authority set aside the order and remanded the case for fresh disposal in accordance with law. It is further pleaded that the suit schedule land is a raiyati land of Bharat Prusty and others. The same was wrongly recorded in the name of State. For the self-same land, Encroachment Case No.11 of 1986-87 was initiated against their father. Initiation of encroachment case is bad in law. With this factual scenario, they instituted the suit for declaration that the order dated 19.8.2002 passed by the defendant no.2 in Encroachment Case No.2 of 2000-2001 is illegal and permanent injunction. 3. The defendant no.1 filed written statement denying the assertions made in the plaint. The case of the defendant no.1 is that the suit land has been recorded in the name of the State. The father of the plaintiffs could not establish that the suit land is a raiyati land in the Encroachment Case No.11 of 1986-87. The defendant no.2 filed written statement taking the similar stand to that of defendant no.1. 4. On the interse pleadings of the parties, learned trial court struck seven issues. Both parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that plaintiffs had not perfected title over the suit land. The defendant no.2 filed written statement taking the similar stand to that of defendant no.1. 4. On the interse pleadings of the parties, learned trial court struck seven issues. Both parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that plaintiffs had not perfected title over the suit land. The order of eviction passed by the Tahasildar, Patna, defendant no.2, is legal and justified. Held so, it dismissed the suit. The unsuccessful plaintiffs filed appeal before the learned District Judge, Keonjhar, which was subsequently transferred to the court of the learned Adhoc Additional District Judge (F.T.-I), Keonjhar and renumbered as R.F.A. No. 63/41 of 2003/04. Learned lower appellate court came to hold that after the case was remanded by the revisional authority, the Tahasildar, Patna passed the order of eviction on 19.8.2002. The plaintiffs filed appeal. Thus, the civil court has no jurisdiction to entertain the grievance of the plaintiffs. Held so, it dismissed the appeal. 5. The second appeal was admitted on the following substantial questions of law. The same are: “(i) Whether the lower appellate court has committed any error in holding that the suit is not maintainable ? (ii) Whether the findings of the court below that the suit plot does not relate to hal plot no.1472/01 is not based on any material available on record ?” 6. Heard Mr. B.K. Nayak, learned counsel for the appellants and Mr. R.P. Mohapatra, learned Additional Government Advocate for the respondents. 7. Mr. Nayak, learned counsel for the appellants argued with vehemence that the civil court has jurisdiction to entertain the suit. Learned lower appellate court is not justified in holding that civil court has lacks jurisdiction to entertain the suit. He further contended that once an appeal is filed, the learned lower appellate court is duty bound to decide all the issues. But in the instant case, the learned lower appellate court had not decided any issue. Thus the judgment of the learned lower appellate court is perverse. 8. Per contra, Mr. Mohapatra, learned Additional Government Advocate for the respondents submitted that plaintiffs had encroached upon the Government land. In a proceeding under the Orissa Prevention of Land Encroachment Act (hereinafter referred to as “OPLE Act”), order of eviction was passed. The same was not challenged by the plaintiffs. 8. Per contra, Mr. Mohapatra, learned Additional Government Advocate for the respondents submitted that plaintiffs had encroached upon the Government land. In a proceeding under the Orissa Prevention of Land Encroachment Act (hereinafter referred to as “OPLE Act”), order of eviction was passed. The same was not challenged by the plaintiffs. Learned trial court has rightly held that the suit land is a Government land. 9. In Abhimanyu Jee vs. Dr. Gayaprasad and others, AIR 1982 ORISSA 207, this Court held that the finding in the House Rent Control proceeding that there was no relationship of landlord and tenant between the plaintiff and defendants operated as res judicata and the finding was not available to be re-adjudicated in the civil court. But then, in the case of Life Insurance Corporation of India vs. M/s. India Automobiles and Co. and others, AIR 1991 SC 884 , the apex Court observed that the decision rendered by court of limited jurisdiction, that is to say, the rent control court will not operate as res judicata in the subsequent suit relating to title notwithstanding the terms of Sec.11 of the C.P.C. including Expl. VIII thereto. Taking a cue from Life Insurance Corporation of India (supra), this Court in the case of State of Orissa vs. Bhanu Mali (Dead) Nurpa Bewa and others, AIR 1996 ORISSA 199 held that the decision in the case of Abhimanyu Jee (supra) must be taken to have impliedly overruled. In the said report, this Court further held that the decision of the apex Court in the case of Govt. of Andhra Pradesh vs. Thummala Krishna Rao and another, AIR 1982 SC 1081 was not followed in Narayan Chandra Yotish (supra). Taking a cue from Narayan Chandra Yotish (supra) and the decisions of this Court in the case of Ghasi Khamari and others vs. State of Orissa and others, ILR 1980 (1) Cutt.582, Satyabadi Naik vs. The State of Orissa, AIR 1979 Orissa 8, this Court held that the Civil Court had jurisdiction to decide the question raised before it. Taking a cue from Narayan Chandra Yotish (supra) and the decisions of this Court in the case of Ghasi Khamari and others vs. State of Orissa and others, ILR 1980 (1) Cutt.582, Satyabadi Naik vs. The State of Orissa, AIR 1979 Orissa 8, this Court held that the Civil Court had jurisdiction to decide the question raised before it. It was further held that the decision of the learned Single Judge in the case of Narayan Chandra Yotish (supra) did not take note of the two Bench decisions of this Court arising under the very same Act as well as the decision of the apex Court rendered under an Act containing pari materia provisions must be taken to have been wrongly decided. 10. Notwithstanding the bar contained in Sec.16 of the OPLE Act, the civil court has jurisdiction to adjudicate the complicated question of title. 11. In Santosh Hazari vs. Purushottam Tiwari, AIR 2001 SC 965 , the apex court held thus: “15. xxx xxx xxx The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudnary, AIR 1967 SC 1124 ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage, adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage, adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of the fact (See Madhusudam Das v. Smt. Narayani Bai, AIR 1983 SC 114 ). The rule is-and it is nothing more than a rule of practice-that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the creditability of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to whether the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120 ). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.” 12. The lower appellate court had not dealt with the issues and dismissed the appeal on the ground that the civil court has no jurisdiction to entertain the suit. As held above, the suit is maintainable. The inescapable conclusion is that the judgment and decree of the learned lower appellate court is not sustainable in the eye of law. The substantial questions of law are answered accordingly. 13. Resultantly, the judgment and decree of the learned lower appellate court is set aside. The matter is remitted back to the leaned lower appellate court for de novo hearing. The appeal is allowed. No costs.