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2017 DIGILAW 1448 (ORI)

Madhaba Charan Das v. Giridhari Padhi

2017-12-13

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. 1. This is a plaintiff’s appeal against reversing judgment. The suit was for declaration of title, permanent and mandatory injunction. 2. The case of the plaintiff is that defendants 1 and 3 are the sons of defendant no.2. They purchased an area Ac.0.510 dec. out of Ac.0.519 dec. appertaining to khata no.64, plot no.221 of Umapuri Mouza, Berhampur by means of three registered sale deeds. He purchased the southern site of plot nos.218 and 219 by means of a registered sale deed dated 25.3.1991 under the impression that the suit plot is a part of plot no.219. After obtaining approval of the building plan from B.R.I.T., he constructed a rice mill over the same. The rest Ac.0.009 dec. land of plot no.221 is used as passage. The defendants have not purchased the same. The suit land is the passage of the plaintiff for his access to the public road. There is no other passage. The plaintiff and his predecessor use the suit site as their passage peacefully and continuously for more than thirty years and, as such, perfected title by way of adverse possession. When the defendants created disturbances in his possession, he instituted the suit seeking the relief mentioned supra. 3. The defendants filed written statement denying the assertions made in the plaint. Their specific case is that the entire lands situate on the east of the Khajuria road. Plot nos.221, 219, 218 and 220 are agricultural lands. They purchased the entire plot no.221. The plaintiff purchased the land in the year 1991 by means of a registered sale deed. The plaintiff has not purchased any land out of plot no.221. There is no passage adjoining to the land of the plaintiff. The village map as well as R.O.R. does not reflect existence of road. There is no compound wall at the time of purchase of the land by the defendants. Plot nos.218 and 219 have been purchased by the plaintiff by means sale deed. Plot no.220 is the Bijesthali of Uttareswar Mohaprabhu. Plot nos.220, 219 and 218 exist on the northern side boundary plot no.221. The sale deed of the plaintiff does not reveal that the suit land is a part of plot no.219. The suit plot is a part of plot no.221. As the plaintiff made a false claim of passage over the suit site, the defendants filed a demarcation case. Plot nos.220, 219 and 218 exist on the northern side boundary plot no.221. The sale deed of the plaintiff does not reveal that the suit land is a part of plot no.219. The suit plot is a part of plot no.221. As the plaintiff made a false claim of passage over the suit site, the defendants filed a demarcation case. The Amin of the office of the Tahasildar came and measured the land. But then the plaintiff had put his signature in the Amin’s report. 4. On the inter se pleadings of the parties, the learned trial court framed eight issues. Parties led evidence, both oral and documentary. The learned trial court held that the defendants have not purchased the suit land. The plaintiff has purchased the same from the original owner under a bona fide belief that the suit land forms a part of plot no.219. The suit passage is a private passage, which is explicit from the sale deed of defendant no.1 under Ext.1. Private passage has not been reflected in the village map. The plaintiff has right, title and interest over the same. Held so, it decreed the suit. The defendants filed appeal before the learned District Judge, Berhampur, which was subsequently transferred to the court of the learned 1st Additional District Judge, Berhampur and renumbered as Title Appeal No.50/99(Title Appeal No.51/98 G.D.C.). The learned appellate court held that the suit plot does appertain to plot no.221 or plot no.220 of Uttareswar Mohaprabhu, which situate to the east of Phulta road. The suit land has not been purchased by the plaintiff. Therefore, the plaintiff has not acquired any title. In absence of any demarcation report by the Survey Knowing Commissioner and for non-production of the R.O.R showing the recorded area of plot nos.218, 219 and 221, a definite finding cannot be given merely on surmises relying on the statements of the parties and the recitals in their respective sale deeds. The plaintiff has failed to substantiate his case that the suit land appertains to his purchased land under Ext.1. Held so, it allowed the appeal. 5. The Second Appeal was admitted on the substantial questions of law enumerated in ground nos.3, 5, 6 & 9 of the appeal memo. The same are : “3. The plaintiff has failed to substantiate his case that the suit land appertains to his purchased land under Ext.1. Held so, it allowed the appeal. 5. The Second Appeal was admitted on the substantial questions of law enumerated in ground nos.3, 5, 6 & 9 of the appeal memo. The same are : “3. Whether by reading Ext.A (defendants’ Sale Deed) and Ext.(Sale Deed of plaintiff) under which the adjacent lands were conveyed, can it be otherwise construed than what has been found by the learned trial court, when admittedly, the northern boundary of the defendants’ land is bounded by brick walls abutting to the suit land ? 5. Whether the holding of the learned Appellate Court that the plaintiff…………………” has managed to mention the same in his Sale Deed in order to garb the property of others………” constitutes a perverse finding of fact and/or amounts by to a third or new case ? 6. Whether the approach of the learned First Appellate Court by imputing bias or motives to the learned Trial Court that “……it is found that the Civil Judge has already made up his mind before writing the judgment believing the statement of the plaintiff” amounts to misdirection in law affecting the merits of the case ? 9. Whether by not considering and following the judgment of this Hon’ble Court, vide 1999 II OLR 42 serious error of law or defect in procedure has been committed ? For, the principle enunciated therein is that when a party refrains from entering into the witness box to substantiate his case pleaded in W.S., what was prima facie against him becomes conclusive proof by not denying the same. The learned Trial Court, relying on this principle based its finding on Issue No.5, but that was totally brushed aside and ignored by the learned First Appellate Court. Consequently, the fundamental principle that “the precedents which enunciate rules of law form the foundation of administration of justice” was violated (vide AIR 2000 S.C.594)?” 6. Heard Mr.Sanjat Das, learned Advocate for the appellant and Mr.Maheswar Mohanty, learned Advocate along with Mr.Abani Kumar Srichandan, learned Advocate for the respondents. 7. Mr.Das, learned Advocate for the appellant argued with vehemence that the original owner Kasinath sold Ac.0.510 dec. of land appertaining to Survey No.830/1 including the suit site adjacent to Paramananda Sahu by means of a registered sale deed dated 24.4.1965 under Ext.2. 7. Mr.Das, learned Advocate for the appellant argued with vehemence that the original owner Kasinath sold Ac.0.510 dec. of land appertaining to Survey No.830/1 including the suit site adjacent to Paramananda Sahu by means of a registered sale deed dated 24.4.1965 under Ext.2. Ext.2 indicates western boundary as Putta Road, which otherwise called as Khajuria Road. On the same day i.e. on 24.4.1965 Kasinath sold another plot measuring an area Ac.0.510 to one Mahadeb Sahu. Thereafter Paramananda sold his plot to the plaintiff by means of a registered sale deed under Ext.1. P.W.1, in his evidence, has stated that the suit land is used as road towards mills of the plaintiff. The road has been mentioned as the northern boundary of the land purchased by defendant no.1 under Ext.A. The learned trial court, on a thread bare analysis of evidence on record, decreed the suit, but then the learned appellate up set the findings of the learned trial court on untenable and unsupportable grounds. He further contended that where there is any misdescription of the property, the real intention of the parties has to be gathered from the surrounding circumstances as well as the sale deed. In the event there is a conflict in the description of a property in a sale deed or any other instrument so far as plot number, khata number and boundaries are concerned, boundaries are to prevail. While reversing the judgment of the learned trial court, the learned appellate court has not taken into consideration the materials available on record. He relied on the decisions of the apex Court as well as in the case of Iswar Bhai C.Patel alias Bachu Bhai Patel v. Harihar Behera and another, 1999 (II) OLR (SC)-42, Aja Dei and another v. Gayadhar Das, 1999 (II) OLR-471 and Babaji Dehuri and others v. Biranchi Ananta and others, 1996 (I) OLR-451. 8. Mr.Mohanty, learned Advocate for the respondents submitted that there is no evidence on record to show that the plaintiff and his predecessors used the suit passage. P.Ws.1 and 2 admitted that both the parties purchased the agricultural land. Thus existence of compound wall over an agricultural land is not probable. P.W.1 deposed that he had no knowledge whether the suit land is a part of plot no.221. Ext.4 is the no objection certificate granted by the authority to start a mill on a portion of plot nos.218 and 219. Thus existence of compound wall over an agricultural land is not probable. P.W.1 deposed that he had no knowledge whether the suit land is a part of plot no.221. Ext.4 is the no objection certificate granted by the authority to start a mill on a portion of plot nos.218 and 219. The same is no way concerned with regard to the existence of passage. There is no perversity in the findings of the court below. 9. The plaintiff is the owner of plot nos.218 & 219. The defendants are the owners of plot no.221. They are adjacent owners of the said plots. The plaintiff asserts that he purchased Ac.0.009 dec. of land along with the suit plots by means of a registered sale deed dated 25.3.1991 with an impression that the suit plot is a part of plot no.219. The learned appellate court on a threadbare analysis of the evidence on record and pleadings, came to hold that it cannot be said that the suit plot appertain to plot no.221 of defendant no.1 or plot no.220 of Uttarswar Mohaprabhu situated to the immediate east of the road. The plaintiff has not acquired any title in respect of the suit plot. He has not purchased the suit land. The suit land appertains to plot no.221. It further held that no definite finding can be rendered on a mere surmise relying on the statements of the parties. No Objection Certificate was granted by the authority with regard to construction made over plot nos.218 & 219. The same has been nothing to do with regard to existence of the passage. There is no perversity or illegality in the same. The substantial questions of law are answered accordingly. 10. The decision relied upon by the learned Advocate for the appellant in the case of Iswar Bhai C. Patel (supra) is distinguishable on facts. In Babaji Dehuri and others (supra), this Court held that whenever there is any such mis-description, ordinarily the description as per the boundaries may be preferred to represent the correct intention of the parties. But the same is not the case of the either party. In Babaji Dehuri and others (supra), this Court held that whenever there is any such mis-description, ordinarily the description as per the boundaries may be preferred to represent the correct intention of the parties. But the same is not the case of the either party. In Aja Dei (supra) this Court set aside the judgment of the learned appellate court and remitted the matter back for reconsideration since the learned appellate court set aside the judgment of the learned trial court without any discussions referring to the evidence, but in the instant case, the learned appellate court, on a threadbare analysis of evidence and pleadings, set aside the judgment. There is no perversity in the findings of the learned lower appellate court. The substantial questions of law are answered accordingly. 11. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed.