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2017 DIGILAW 1312 (ORI)

Sri Sri Kedarnath Mahaprabhu v. State of Orissa

2017-11-15

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Plaintiff is the appellant against an affirming judgment. The suit was for declaration of right, title and interest and permanent injunction. 2. Plaintiff is the deity represented through its marfatdar. Case of the plaintiff is that Sri Sri Kedarnath Mahaprabhu is the family deity of Ladi Sanyasi. Ladi Sanyasi installed the deity in the year 1971. He was the marfatdar of the deity. One Kalyan Mandap and flower garden exist over the suit land. The deity is the owner in possession of Ac.11.66 cents of land appertaining to Khata Nos.102/39 and 51/92 of Village-Gopalpur. He purchased the suit lands by means of a registered sale deed no.982/78 from Devarasetty Janardhan and his sons. Possession of the land was delivered to him. The suit lands were sold by mentioning the khata number, plot number, local name with boundaries. The suit lands could not be mutated in his name as the sale deed was impounded. Encroachment Case No.602 of 1984 was initiated against him in respect of Plot No.163/3 admeasuirng Ac.1.55 cents and Plot No.123/1 admeasuirng Ac.1.13 cents. In the said case, the marfatdar appeared and prayed for demarcation and identification of the lands; but then the land was not demarcated. After his death, his son Ladi Trinath Rao became the marfatdar of the deity. He demarcated the land by a survey knowing commissioner. It was found that item nos.4 and 5 mentioned in the sale deed appertains to Plot Nos.123/1 and 163/3. Though khata number and plot numbers have been wrongly mentioned, but the boundary tallies. It was further pleaded that the vendor of the plaintiff and the vendor’s vendor were in peaceful possession of the suit land. After them, he is in possession of the suit land. Since the defendants created disturbance, he filed the suit seeking the reliefs mentioned supra. 3. Defendants filed a written statement denying the assertions made in the plaint. Case of the defendants is that the plaintiff is in possession of Ac.2.10 cents of land appertaining to Khata No.51/92. There is no such Khata No.102/39. The plaintiff has no landed property in Village-Gopalpur. The plaintiff has not purchased the suit land. The suit plot no.163/3, Ac.7.20 cents and Plot No.123, Ac.8.07 appertaining to Khata No.52 have been recorded in the name of the State Government. The plaintiff is not in possession of any portion of the suit land. There is no such Khata No.102/39. The plaintiff has no landed property in Village-Gopalpur. The plaintiff has not purchased the suit land. The suit plot no.163/3, Ac.7.20 cents and Plot No.123, Ac.8.07 appertaining to Khata No.52 have been recorded in the name of the State Government. The plaintiff is not in possession of any portion of the suit land. As Ladi Sanyasi encroached upon Ac.1.55 cents appertaining to Plot No.163/3 and Ac.1.13 cents appertaining to Plot No.123/1 of Khata No.52 of village-Gopalpur, Encroachment Case No.602 of 1984 was initiated against him. The case was closed. Assessment fee of Rs.61/- and penalty of Rs.210/- was imposed on him. He had vacated the encroached lands. As he encroached upon an area of Ac.0.40 cents of land of Plot No.163/3, order of eviction was passed. The plaintiff approached this Court in OJC No.1485 of 1984 for settlement of the suit land. This Court directed the plaintiff to surrender an equal extent of land in exchange. The said matter is still sub-judice before R.D.C., Berhampur in R.C. Case No.5/83. Since the plaintiff could not surrender equal extent of land in exchange, he has no manner of right, title and interest over the suit land. 4. On the inter se pleadings of the parties, learned trial court struck seven issues. Both the parties led evidence, oral as well as documentary, to substantiate their case. The learned trial court came to hold that the plaintiff had not purchased the suit land from the vendor vide Ext.1. The vendor of the plaintiff was not owner in possession of the suit land. The plaintiff had no right, title and interest over the suit land. The plot number mentioned in the sale deed could not tally with the suit plot, so also the boundary. Held so, it dismissed the suit. Unsuccessful plaintiff filed an appeal before the learned District Judge, Jeypore, which was subsequently transferred to the court of learned Ad hoc Addl. District Judge (FTC), Gunupur and renumbered as Reference First Appeal No.5 of 2002. The appeal was eventually dismissed. 5. The second appeal was admitted on the following substantial questions of law; “1. Whether boundaries given in the sale deed (Ext.1) would prevail when there is discrepancy in the plot number and khata number and those are not in conformity with actual land ? 2. The appeal was eventually dismissed. 5. The second appeal was admitted on the following substantial questions of law; “1. Whether boundaries given in the sale deed (Ext.1) would prevail when there is discrepancy in the plot number and khata number and those are not in conformity with actual land ? 2. Whether the courts below misapplied the provision of Transfer of Property Act as the dedication is not a transfer by gift, the same did not attract the mischief of the said Act ? 6. Heard Mr. C.A Rao, learned Senior Advocate for the appellant and Mr. S. Mishra, learned ASC for the respondents. 7. Mr. Rao, learned Senior Advocate for the appellant argues with vehemence that the marfatdar of the deity purchased the suit schedule land from Devarasetty Janardhan and his sons. The plot number of the suit land and its boundary has also been mentioned in the sale deed. In paragraph-5 of the plaint, the description of the suit property has been clearly mentioned. He further submits that when there is a discrepancy of plot number and khata number, boundary shall prevail. In the instant case, boundary has been given clearly in the sale deed as well as plaint. The courts below committed a manifest illegality in dismissing the suit. He further submits that the sale deed by which the marfatdar of the deity has purchased the property has been exhibited. The private survey knowing commissioner appointed by the plaintiff visited the spot and measured the land. There is no ambiguity in identification of the land. He cites the decision of this Court in the case of Babaji Dehuri and others v. Biranchi Ananta and others, AIR 1996 Ori. 183 . 8. Per contra, Mr. Mishra, learned ASC for the respondents submits that the marfatdar of the deity had not purchased the suit plot. For illegal encroachment of the suit plot, a proceeding under Sec. 7 of the Orissa Prevention of Land Encroachment Act (OPLE Act) was initiated. Both the courts below concurrently held that the marfatdar of the deity had not purchased the suit plot. There is no infirmity in the findings of the courts below. 9. Rival contention made at the Bar requires consideration. Both the courts below concurrently held that the marfatdar of the deity had not purchased the suit plot. There is no infirmity in the findings of the courts below. 9. Rival contention made at the Bar requires consideration. Order 7 Rule 3 CPC postulates that where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. 10. The plaintiff has described the suit plots in the schedule in the following manner. “1st item – East : Paddy lands covered by the suit Regd. Sale deed No.982/78 (i.e. Plot No.163/3 Item No.2) South : Deppo West : Tank called North : K.V. Line Road. This land is Plot No.123/1 recorded wrongly in favour of State Govt. Item No.2 : Which as demarcated revealed to be Plot No.163/3 wrongly recorded in favour of State Govt. East : Ponduru Rama Rao’s wet lands. South : Deppo West : lands covered by this sale deed (item no.1 plot no.123/1) North : K.V. Line road.” 11. In the body of the plaint, the suit schedule property has been described in the same fashion. Neither the name of the village where the property situates nor khata number has been mentioned. Merely mentioning “lands located in village of Gunupur Tahasil and Munsiff and Sub-division” is not suffice. No effective decree can be passed for non description of the suit land. Both courts below on a comparison of the sale deed and schedule of the land described in the plaint came to hold that the marfatdar of the deity had not purchased the land. In the encroachment case, penalty was imposed. There is no infirmity in the said findings. 12. The decision cited by Mr. Rao is distinguishable on facts. When there is a discrepancy between the khata number and plot number, boundary shall prevail, but the same is not the case. The substantial questions of law are answered accordingly. 13. Resultantly, the appeal fails and is dismissed. There shall be no order as to costs.