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2017 DIGILAW 1178 (ORI)

Kangali Charan Sahoo v. Purna Chandra Sahu

2017-10-23

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. The plaintiffs are the appellants against a confirming judgment. The suit was for a declaration that they are in possession of the suit land, confirmation of possession and permanent injunction. 2. The case of the plaintiffs is that schedule ‘A’ property originally belonged to plaintiff no.1 along with others. The same was recorded in their names in the final R.O.R. The disputed property described in schedule ‘B’ originally belonged to Hadi Sahu and Ganeswar Sahu, the sons of Souri Sahu having 8 annas share and Daitari Sahu and Bairagi Sahu, the predecessors in interest of the defendants having 8 annas share. Hadi Sahu and Ganeswar Sahu sold their 8 annas share to Kapila Sahu, father of plaintiff no.1. Schedule ‘A’ land fell to the share of plaintiff no.1 by means of a partition. They are in possession of the suit land. In the current settlement, the same has been recorded as plot no.6. The defendants are the recorded owner of plot no.8. Both the plots adjoin each other. There is a Municipal road abutting to the North and a tank situated on the South of both the plot nos.6 & 8. There is no demarcating line showing individual possession of the parties. On both the plots the houses of the parties situate. There is a lane running from North to South i.e., from the Municipal road up to the tank in the South. The lane runs to the East of the homestead of the plaintiffs and West of the defendants’. According to the plaintiffs, the suit land is a portion of their plot covered under plot no.6. The defendants have no manner of right, title, interest or possession over the suit land. The plaintiffs opened a doorway towards the said lane. There is no alternative passage for them to have their ingress and egress of their house. In the month of July, 1962 the defendants illegally started construction of two rooms without obtaining necessary permission from the Municipal Authorities to the South-West of their existing shop room on their plot no.8. They had also attempted to open a door towards the lane by demolishing the demarcating pucca wall. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra. 3. The case of the defendants is that the plaintiffs are the owner of plot no.6 and they are the owners of plot no.8. They had also attempted to open a door towards the lane by demolishing the demarcating pucca wall. With this factual scenario, they instituted the suit seeking the reliefs mentioned supra. 3. The case of the defendants is that the plaintiffs are the owner of plot no.6 and they are the owners of plot no.8. The tank covered under plot nos.6 and 8 is owned in equal share by the plaintiffs and defendants. Further, the lane comprised in ‘B’ schedule of the plaint is a part and parcel of the defendants’ plot no.8. They are in possession of the same. The lane does not appertain to plaintiffs’ plot no.6. The plaintiffs are not in possession of the same. The specific case of the defendants is that the suit land is covered within plot no.8, but not in plot no.6. In the alternative, it was pleaded that in case the disputed passage is a part and parcel of plaintiffs’ plot no.6, in absence of any partition by metes and bounds between the plaintiffs and defendants in respect of P.S. Plot no.1213, the plaintiffs are not entitled to get any reliefs. 4. On the inter se pleadings of the parties, the learned trial court struck nine issues. Both the parties led evidence, oral and documentary, to substantiate their case. A Civil Court Commissioner was appointed for measurement of the land. The report submitted by him was accepted. The suit was dismissed. The unsuccessful plaintiffs filed appeal before the learned District Judge, Cuttack, which was subsequently transferred to the court of the learned 1st Additional District Judge, Cuttack. The suit was remanded by the learned 1st Additional District Judge, Cuttack with a direction to the learned trial court to decide the suit afresh on the evidence available on record and appoint a Commissioner for measurement of the land. After remand, an Amin Commissioner was deputed by the learned trial court. Both parties submitted before the learned trial court to accept the same. Accordingly, the report was accepted. On an analysis of the evidence on record and pleadings as well as report of the Commissioner, the learned trial court came to hold that the suit plot appertains to plot no.8, which belongs to the defendants. It is a part and parcel of plot no.8. The plaintiffs have no semblance of right, title and interest over the suit plot. Held so, it dismissed the suit. It is a part and parcel of plot no.8. The plaintiffs have no semblance of right, title and interest over the suit plot. Held so, it dismissed the suit. Felt aggrieved, the plaintiffs filed appeal before the learned District Judge, Cuttack, which was subsequently transferred to the court of the learned 1st Additional District Judge, Cuttack and renumbered as Title Appeal No.59 of 1981/7 of 1983. The appeal was eventually dismissed. It is apt to state that during pendency of the appeal, appellant no.2 died and his legal heirs have been substituted. 5. The Second Appeal was admitted on the following substantial questions of law enumerated in ground nos.2, 3 & 6 of the appeal memo. They same are: “2. For that after the commissioner was cross-examined in the trial court, the learned trial court without hearing argument on commissioner’s report delivered judgment of the man case. 3. For that the learned lower appellate court has failed to consider that the plaintiff filed objection to the commissioner report and cross-examine the commissioner and is very important and decisive answer was illicited from the commissioner on the main point of the dispute viz. boundary between the parties to and had be consider this, he would have come to the only conclusion that even accepting the commissioner’s report subject to the cross-examination the disputed land falls to the plaintiff’s plot no.6 and not to the defendant plot no.8. 6. For that the learned lower appellate court has committed error of record by saying “the plaintiff’s have not challenged the commissioner’s measurement before the trial court”. 6. Heard Mr. N.K. Sahu, learned Advocate for the appellants. None appeared for the respondents. 7. Mr. Sahu, learned Advocate for the appellants submitted that the plaintiffs filed objection to the Commissioner’s report. The Survey Knowing Commissioner was examined in the learned trial court. The Commissioner had not measured the land in accordance with the established procedure. The courts below had committed a patent error in holding that the plaintiffs have not challenged the Commissioner’s report and as such the judgments are vitiated. 8. The submission of Mr. Sahu, learned Advocate is difficult to fathom. During pendency of the suit, a Survey Knowing Commissioner was appointed. The suit having been dismissed, the plaintiffs filed appeal before the learned District Judge, Cuttack, which was subsequently transferred to the court of the learned A.D.J., Cuttack. 8. The submission of Mr. Sahu, learned Advocate is difficult to fathom. During pendency of the suit, a Survey Knowing Commissioner was appointed. The suit having been dismissed, the plaintiffs filed appeal before the learned District Judge, Cuttack, which was subsequently transferred to the court of the learned A.D.J., Cuttack. The learned appellate court set aside the judgment and decree of the learned trial court and remitted the matter back to the learned trial court with a direction to decide the suit afresh on the basis of available material on record and appoint a Commissioner. After remand, the learned trial court again deputed a Survey Knowing Commissioner. During measurement of the land, lawyers of the respective parties were present. The Commissioner measured the land and submitted the report. Both the parties submitted that since the suit was of the year 1962, the report be accepted. The report was accepted by the learned trial court after hearing the objection of the plaintiffs. Both the courts held that the plaintiffs had not challenged the Commissioner’s report. The only plea was taken by the plaintiffs that the fixed point had not been correctly taken. The learned appellate court came to hold that the report of the Commissioner vide Ext.8 clearly reveals that the parties had pointed out the disputed plots and fixed point. The plaintiff no.3 had shown the survey stone. The fixed points were also placed in their respective correct position. The Commissioner took the help of prismatic compass, which is used to get the accurate measurement since the area was small. These are essentially a finding of fact. There is no perversity or illegality in the same. The substantial questions of law are answered accordingly. 9. In the wake of the aforesaid, the appeal sans merit, deserves dismissal. Accordingly, the same is dismissed. No costs.