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2017 DIGILAW 1235 (ORI)

Babrubahan Rout v. Kalandi Mallik

2017-11-01

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. 01. This is a plaintiff’s appeal against confirming judgment. The suit was for declaration of title, recovery of possession and permanent injunction. 02. The case of the plaintiffs is that the suit plot is their ancestral property. The same was recorded in the name of Raghunath, common ancestor. After death of Raghunath, the suit plot was mutated in the name of Padmanav. Padmanav died leaving behind his widow, plaintiff no.6 and four sons, namely, Jagabandhu, Sarat, Krutibas and Kalandi. Jagabandhu died leaving behind his widow, plaintiff no.2 and Babrubahan, plaintiff no.1. After the death of Raghunath, the plaintiffs being the successors-in-interest possessed the suit plot jointly. In the settlement, the suit plot had been recorded in the name of the plaintiffs. The defendants have no semblance of right, title and interest over the suit plot. They tried to dispossess the plaintiffs. 03. The defendants entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendants is that necessary parties have not been impleaded in the suit. The suit plot is a part of plot no.2185, which is a public road. They constructed a hut on it. The plaintiffs are the owners of plot no.2160, area Ac.0.18 dec. But in the current settlement, the area has been enhanced to Ac.0.20 dec. 04. On the interse pleadings of the parties, learned trial court struck eight issues. Parties led evidence. In course of hearing, an application was filed by the plaintiffs under Order 26 Rule 9 C.P.C. for deputation of a civil court commissioner. The civil court commissioner submitted the report stating therein that plot no.3391 corresponds to plot no.2160. Plot no.2160 was having an area of Ac.0.18 dec. But the same was enhanced to an area Ac.0.20 dec. The enhanced area of Ac.0.02 dec. is a Government land. Learned trial court accepted the report of the civil court commissioner without any objection from either side and held that there was no infirmity in the same. Held so, it dismissed the suit. The unsuccessful plaintiffs challenged the judgment and decree before the learned Sub-Judge, Anandapur in T.A. No.2 of 1986, which was eventually dismissed. 05. The second appeal was admitted on the substantial questions of law enumerated in ground nos. (a) and (c) of the memorandum of appeal. Held so, it dismissed the suit. The unsuccessful plaintiffs challenged the judgment and decree before the learned Sub-Judge, Anandapur in T.A. No.2 of 1986, which was eventually dismissed. 05. The second appeal was admitted on the substantial questions of law enumerated in ground nos. (a) and (c) of the memorandum of appeal. The same are: “(a) Whether the learned courts below are justified in dismissing the suit of these plaintiffs on the ground that defendants have perfected their title by way of adverse possession in the absence of any pleading or proof regarding hostile possession continuously for more than the statutory period and more so when defendants have pleaded that suit plot does not appertain to plaintiffs homestead plot? (c) Whether the learned courts below are justified to hold that since the plaintiffs have filed the suit based on proprietory title, they are to prove their title on the suit land and also to prove their physical possession over the same within 12 years from the date of institution of the suit?” 06. Heard Mr. S.K. Samantaray, learned counsel on behalf of Mr. S.P. Mishra, learned Senior Advocate for the appellants and Mr. R.K. Mohanty, learned Senior Advocate on behalf of Mrs. S. Mohanty, learned counsel for the respondents. 07. Mr. Samantaray, learned counsel for the appellants submits that the plaintiffs are the owners of the suit schedule plot. The defendants have no semblance of right, title and interest over the same. The defendants are the trespassers. The enhanced area of Ac.0.02 dec. might have been reduced from other plot of the plaintiffs. He further submits that when there are discrepancies in the sabak settlement and hal settlement, recording of the hal ROR will prevail. The report of the civil court commissioner is inconsistence. Learned courts below committed a manifest illegality and impropriety in accepting the same. 08. Per contra, Mr. Mohanty, learned Senior Advocate for the respondents argues with vehemence that the plaintiffs are the owners in possession of area Ac.0.18 dec. as would be evident from the sabak settlement ROR. But in the hal settlement ROR, the area had been wrongly enhanced to Ac.0.20 dec. The enhanced area of Ac.0.02 dec. is a Govt. land. The plaintiffs had failed to establish that they are the owners of the enhanced area of Ac.0.02 dec. Further the civil court commissioner was appointed at the behest of the plaintiffs. But in the hal settlement ROR, the area had been wrongly enhanced to Ac.0.20 dec. The enhanced area of Ac.0.02 dec. is a Govt. land. The plaintiffs had failed to establish that they are the owners of the enhanced area of Ac.0.02 dec. Further the civil court commissioner was appointed at the behest of the plaintiffs. He submitted that the Commissioner’s report reveals the enhanced area belonged to the Government. Plaintiffs are not in possession of the same. The report of the civil court commissioner was accepted with the consent of the parties. The plaintiffs cannot blow hot and cold in the same breath. Both the courts concurrently held that the plaintiffs are not the owners of the enhanced suit schedule plot. 09. In the sabak settlement ROR, the area was Ac.0.18 dec. The same was enhanced to Ac.0.20 dec. During pendency of the suit, the plaintiffs filed an application under Order 26 Rule 9 C.P.C. to appoint a civil court commissioner. The civil court commissioner visited the spot, measured the land and submitted a report stating therein that the enhanced area of Ac.0.02 dec. belongs to Government. The plaintiffs are not in possession of the same. The report of the civil court commissioner was accepted by the learned trial court without any objection from either side. Thus it is too late in the date to say that there are inconsistencies in the report of the civil court commissioner. 10. On an analysis of evidence on record as well as pleadings, both the courts concurrently held that the enhanced area of Ac.0.02 dec. belongs to Government. Whether the defendants are trespassers or they have right, title and interest over the suit land, are immaterial for deciding the lis. The plaintiffs have to stand or fall on their own case. The plaintiffs failed to prove that they are the owners of the enhanced area of Ac.0.02 dec. of land. The substantial questions of law are answered accordingly. 11. In the result, the appeal fails and is dismissed. There shall be no order as to costs.